Brown v. Commonwealth

JUDGE Du RELLE

delivered the opinion of the court.

At the June term, 1896, of the Lincoln Circuit Court, the appellant was indicted upon two charges of break *128 ing into a warehouse. These indictments were returned on the same day, June 8th. Appellant pleaded guilty to each, and on June 9th, after verdicts fixing his punishment at five years’ imprisonment in the penitentiary in each case, was sentenced. On June 10th knottier indictment was returned against him for feloniously breaking into and entering a dwelling house. In this indictment the two former convictions for felony at the same term were set up. He pleaded not guilty, but the jury found him guilty and fixed his punishment at confinement in the penitentiary for life, and the court sentenced him in accordance with the verdict. This was done under authority of section 1130, Kentucky Statutes, as follows: “Every person convicted a second time of felony, the punishment of which is confinement in the penitentiary, shall be confined in the penitentiary not less than double the time of the first conviction, and if convicted the third time of felony he shall be confined in the penitentiary during his life. Judgment in such cases shall not be given for the increased penalty unless the jury shall find, from record and other competent evidep.ce, the fact of former conviction for felony committed by the prisoner in or out of the State.”

The question presented for decision is whether the statute in question authorizes the imposition of the increased penalty for an offense not committed after the original convictions. We think not. The statute was manifestly intended to provide an increased penalty for a subsequent offense in order to deter the offender' *129 from its repetition. After punishment is imposed, for the commission of a crime, the double penalty is held in tcrrorem over the criminal for the purpose of effecting his reformation and preventing further and subsequent offenses by him. So Ave find that for a third offense the punishment of imprisonment for life is provided by the act, upon the theory, doubtless, that he must then be regarded as incorrigible. The reformatory object of the statute, namely; to provide a deterrent from future crime, Avould not be effected by a construction Avhich gives to the offender no opportunity to reform. Moreover, “doubtful questions as to the severity of the penalty are to be resolved in favor of the accused.” Am. & Eng. Ency., 4726.

We are of the opinion that the Avords “convicted a second time of felony” and “convicted a third time of felony” must be restricted to felonies committed subsequent to the dates of the convictions relied on to effect an increase of the penalty, for otherAvise no locus paenitentiae Avould be offered to the accused.

For the reasons stated the judgment is reversed and cause remanded, Avith directions to aAvard the appellant a neAV trial and for further proceedings consistent Avitk this opinion.