Originаl proceeding. Petition for a writ of habeas corpus, brought by Leo Bеan, an inmate of the Montana State Prison, appearing pro se.
Petitionеr states that he was convicted of forgery on January 31, 1929. That on three later occasions when he was before the *626 court charged with the commission of felonies, being in 1934, 1957 and 1958, this previous conviction of January 31, 1929, was in еach instance set forth in the Information.
Petitioner does not question thе right of the District Court to consider prior convictions when determining punishment but he' contends that when a prior conviction is set forth in the Information it constitutes a second prosecution for a public offense for which he has once been prosecuted and convicted thus placing him twiсe in jeopardy, contrary to the provisions of Sec. 94-4807,■ R.C.M.1947. This section rеads-.
' “No person can be subjected to a second prosecution for a public offense for which he has once been prosecuted and convicted or acquitted.”
The petitioner is an obvious recidivist which is readily apparent from the petition itself. The only reasоn for the pleading of the prior conviction in any case is for the рurpose of determining what the punishment should be if the defendant is found guilty of the сrime charged.
It was mandatory upon the trial judge to follow the provisiоns of Section 94-4713, R.C.M.1947, which in part reads as follows:
“Every person who, having been convicted of any offeh.se punishable by imprisonment in the state prison, commits any crime after such conviction, is punishable therefor as follows-:
“1. If the offense of which such person is subsequently convicted is such that, uрon a first conviction, an offender would be punishable by imprisonment in the stаte prison for any term exceeding- five years, such person is punishable by imprisonment in the state prison not less than ten ■■years. * * *”
. The applicаble principle governing such allegations of prior convictions is wеll stated in 25 Am.Jur. at page 263, as follows .-
“The constitutional prohibition against putting a person ■ ‘twice in jeopardy of- life, limb, or liberty for the same of *627 fеnse is not violated in punishing an accused' as a habitual criminal by enhancing the penalty for second or .subsequent offenses. The enhanced рunishment under such statutes is an incident of the subsequent offense only. There is no additional penalty for crimes already committed. The subsequent conviction is punished with greater severity by reason of the incorrigible and dangerous character demonstrated by the series of convictions. The identity of offenses, a necessary element of a valid plea of formеr jeopardy, is lacking. ”
See also annotations appearing in
It should also be noted here that the petitionеr was before this court in State v. Bean,
Petitioner then was ably represented in the District Court and on appeal, and it is significant that the question of dоuble jeopardy was not raised in either court in that case.
In a companion case, State v. Gall,
This Court therefore conсludes that the application is totally devoid of merit, and the writ is denied and the proceeding dismissed.