The statute of West Virginia providing that, where a prisoner
has been convicted and sentenced to the penitentiary, the question
of his identity with one previously convicted one or more times can
be tried on information, and if proved, imposing additional
imprisonment in case of one prior conviction for five year, and, in
case of two convictions, for life, is not unconstitutional, as to
one twice previously convicted and on whom life imprisonment has
been imposed, either as depriving him of his liberty without due
process of law, denying him the equal protection of the law,
placing him in second jeopardy for the same offense, abridging his
privilege and immunities as a citizen of the United States, or
inflicting cruel and unusual punishment.
The propriety of inflicting severer punishment upon old
offenders has long been recognized in this country and in England
-- such increased punishment is not a second punishment for the
earlier crime, but is justified by the repetition of criminal
One who has been convicted before is not denied due process of
law by having the question of identity passed upon separately from
the question of guilt of the second offense.
A state which adopts the policy of heavier punishment for
repeated offending may provide for guarding against second
offenders' escaping by reason of their identity's not being known
at the time of sentence.
Proceeding by information instead of indictment to ascertain the
identity of a convicted criminal with one previously convicted doe
not deny due process of law or equal protection of the law, and
this even if other persons accused of crime are proceeded against
Page 224 U. S. 617
The Fourteenth Amendment did not introduce a factitious equality
without regard to practical differences that are best met by
corresponding differences of treatment, Standard Oil Co. v.
Tennessee, 217 U. S. 413
a state may make different arrangements for trials under different
circumstances of even the same class of offenses if all in the same
class are subject to the same procedure.
Where one has been charged with having been previously convicted
of another offense, he is not put in double jeopardy by having the
question of his identity determined by a trial, nor are any of his
immunities and privileges as a citizen of the United States
abridged. The imposition of a heavier penalty for repeated offenses
does not amount to inflicting a cruel and unusual punishment.
Questions of validity of a state penal statute under the state
constitution are not open in this Court.
68 W.Va. 248 affirmed.
The facts, which involve the constitutionality of a statute of
West Virginia providing for heavier penalties on persons convicted
of crime if previously convicted, and for determining the identity
of persons formerly convicted, are stated in the opinion.
Page 224 U. S. 620
MR. JUSTICE HUGHES delivered the opinion of the Court.
In April, 1898, the plaintiff in error, James H. Graham, then
known as John H. Ratliff, was indicted for grand larceny in
Pocahontas County, West Virginia, pleaded guilty, and was sentenced
to the penitentiary for two years. In April, 1901, under the name
of Ratliff, he was indicted for burglary in Pocahontas County, West
Virginia, pleaded guilty, and was sentenced to the penitentiary for
ten years. In October, 1906, he was granted a parole by the
Governor of West Virginia upon condition that he should pursue the
course of a law-abiding citizen. In September, 1907, under the name
of John H. Graham,
Page 224 U. S. 621
alias J. H. Gray, he was indicted in Wood County, West Virginia,
for grand larceny, pleaded guilty, and was sentenced to the
penitentiary for five years.
In February, 1908, the prosecuting attorney for Marshall County,
in which the penitentiary was located, presented an information to
the circuit court of that county alleging that the convict Graham
was the same man who had twice before been convicted as above
stated. Graham was brought before the court, and pleaded that he
was not the same person. Later he withdrew his plea, moved to quash
the information, and on denial of the motion, renewed the plea. A
jury was called, and after hearing evidence for the prosecutor, the
defendant offering none, returned a verdict identifying him as the
person previously convicted. Thereupon the defendant moved for
arrest of judgment upon the ground that the proceeding was in
violation of the Constitution of the state, and also contrary to
the Fifth and Fourteenth Amendments of the Constitution of the
United States. The motion was overruled, and the court sentenced
the prisoner to confinement in the penitentiary for life. The
judgment was affirmed by the Supreme Court of Appeals of West
Virginia. 68 W.Va. 248. And the case comes here on error.
The proceeding was taken under §§ 1 to 5 of chapter 165 of the
Code of West Virginia, which are as follows:
"1. All criminal proceedings against convicts in the
penitentiary shall be in the Circuit Court of the County of
"2. When a prisoner convicted of an offense, and sentenced to
confinement therefor in the penitentiary is received therein, if he
was before sentenced to a like punishment, and the record of his
conviction does not show that he has been sentenced under the
twenty-third or twenty-fourth section of chapter 152, the
superintendent of the penitentiary shall give
Page 224 U. S. 622
information thereof, without delay, to the said Circuit Court of
the County of Marshall, whether it be alleged or not in the
indictment on which he was so convicted that he had been before
sentenced to a like punishment."
"3. The said court shall cause the convict to be brought before
it, and upon an information filed setting forth the several records
of conviction and alleging the identity of the prisoner with the
person named in each, shall require the convict named to say
whether he is the same person or not."
"4. If he say he is not, or remain silent, his plea, or the fact
of his silence shall be entered of record, and a jury shall be
empaneled to inquire whether the convict is the same person
mentioned in the several records."
"5. If the jury find that he is not the same person, he shall be
remanded to the penitentiary, but if they find that he is the same
person, or if he acknowledge in open court, after being duly
cautioned, that he is the same person, the court shall sentence him
to such further confinement as is prescribed by chapter 152 on a
second or third conviction, as the case may be."
The provisions of §§ 23 and 24 of chapter 152 to which the above
statute refers are:
"23. When any person in convicted of an offense and sentenced to
confinement therefor in the penitentiary, and it is alleged in the
indictment on which he is convicted, and admitted, or by the jury
found, that he had been before sentenced in the United States to a
like punishment, he shall be sentenced to be confined five years in
addition to the time to which he is or would be otherwise
"24. When any such convict shall have been twice before
sentenced in the United States to confinement in a penitentiary, he
shall be sentenced to be confined in the penitentiary for life.
Page 224 U. S. 623
These statutes were derived from the laws which were in force in
Virginia before West Virginia was created, and formed part of the
Code of Virginia of 1860, c. 199, which in turn had been taken from
the Code of 1849, c. 199.
The plaintiff in error challenges the validity of the
legislation and the proceedings which it authorized, upon the
grounds: (1) that he has been deprived of his liberty without due
process of law; (2) that he has been denied the equal protection of
the laws; (3) that his privileges and immunities as a citizen of
the United States have been abridged, and that he has been denied
his immunity from double jeopardy, and (4) that cruel and unusual
punishment has been inflicted.
1. The propriety of inflicting severer punishment upon old
offenders has long been recognized in this country and in England.
They are not punished the second time for the earlier offense, but
the repetition of criminal conduct aggravates their guilt and
justifies heavier penalties when they are again convicted. Statutes
providing for such increased punishment were enacted in Virginia
and New York as early as 1796, and in Massachusetts in 1804, and
there have been numerous acts of similar import in many states.
This legislation has uniformly been sustained in the state courts
2 Pick. 165, 170; Plumbly v.
2 Met. 413, 415; Commonwealth v.
175 Mass. 202, 205; Rand v. Commonwealth,
9 Gratt. 740, 741; King v. Lynn,
90 Va. 345, 347;
People v. Stanley,
47 Cal. 114; People v.
145 Cal. 609; Ingalls v. State,
48 Wis. 647;
Maguire v. State,
47 Md. 485; State v. Austin,
113 Mo. 538), and it has been held by this Court not to be
repugnant to the federal Constitution. Moore v. Missouri,
159 U. S. 673
McDonald v. Massachusetts, 180 U.
In the McDonald
case, the statute (Mass.Stat. 1887, c.
435, § 1) provided that, whenever one had been twice
Page 224 U. S. 624
convicted of crime and committed to prison in Massachusetts, or
in any other state, he should, upon conviction of a subsequent
felony, be deemed to be an "habitual criminal," and should be
punished by imprisonment for twenty-five years. In delivering the
opinion of the Court, Mr. Justice Gray said (p. 180 U. S.
"The fundamental mistake of the plaintiff in error is his
assumption that the judgment below imposes an additional punishment
on crimes for which he had already been convicted and punished in
Massachusetts and in New Hampshire."
"But it does no such thing. . . . The punishment is for the new
crime only, but is the heavier if he is an habitual criminal. . . .
The allegation of previous convictions is not a distinct charge of
crimes, but is necessary to bring the case within the statute, and
goes to the punishment only."
In the present case, it was not charged in the indictment on
which the prisoner was last tried that he had previously been
convicted of other offenses, but after judgment he was brought
before the court of another county, in a separate proceeding
instituted by information, and on the finding of the jury that he
was the former convict, he was sentenced to the additional
punishment which the statute in such case prescribed.
By this proceeding, he was not held to answer for an offense;
the information did not allege crime. As was said by the Supreme
Court of Appeals of West Virginia:
"It [the information] alleges that he has been held to answer
for crime, and that he stands convicted of it through the
indictment of a grand jury. It points him out as a convict already
held, upon whom rests the general sentence of the law of life
imprisonment. . . . The proceedings under the statute are for
identification only. They are clearly not for the establishment of
guilt. The question of guilt is not reopened. State v.
Page 224 U. S. 625
68 W.Va. 248. Full opportunity was accorded to the prisoner to
meet the allegation of former conviction. Plainly, the statute
contemplated a valid conviction which had not been set aside or the
consequences of which had not been removed by absolute pardon. No
question as to this can be raised here, for the prisoner in no way
sought to contest the validity or unimpaired character of the
former judgments, but pleaded that he was not the person who had
thus been convicted. On this issue, he had due hearing before a
It cannot be said that the prisoner was deprived of due process
of law because the question as to former conviction was passed upon
separately. While it is familiar practice to set forth in the
indictment the fact of prior conviction of another offense, and to
submit to the jury the evidence upon that issue, together with that
relating to the commission of the crime which the indictment
charges, still, in its nature, it is a distinct issue, and it may
appropriately be the subject of separate determination. Provision
for a separate and subsequent determination of his identity with
the former convict has not been regarded as a deprivation of any
fundamental right. It was established by statute in England that,
although the fact was alleged in the indictment, the evidence of
the former conviction should not be given to the jury until they
had found their verdict on the charge of crime. The Act of 6 &
7 Wm. IV, c. 111, provided that it should
"not be lawful on the trial of any person for any such
subsequent felony to charge the jury to inquire concerning such
previous conviction until after they shall have inquired concerning
such subsequent felony, and shall have found such person guilty of
the same, and whenever in any indictment such previous conviction
shall be stated, the reading of such statement to the jury as part
of the indictment shall be deferred until after such finding, as
Exception was made in cases where the accused gave evidence
Page 224 U. S. 626
of good character to meet the charge of crime, whereupon the
prosecutor might show the former conviction before the verdict of
guilty had been returned. And in Regina v. Shuttleworth,
C. & K. 375, 376, Lord Campbell thus stated the practice under
"It is the opinion of all the judges -- the prisoner is to be
arraigned on the whole indictment, and the jury are to have the new
charge only stated to them, and if no evidence is given as to
character, nothing is to be read to the jury of the previous
conviction till the jury have given a verdict as to the new charge.
The jury, without being resworn, are then to have the previous
conviction stated to them, and the certificate of it is to be put
in, and the prisoner's identity proved."
24 & 25 Vict., c. 96, § 116.
If a state adopts the policy of imposing heavier punishment for
repeated offending, there is manifest propriety in guarding against
the escape from this penalty of those whose previous conviction was
not suitably made known to the court at the time of their trial.
Otherwise, criminals who change their place of operation and
successfully conceal their identity would be punished simply as
first offenders, although on entering prison they would immediately
be recognized as former convicts. It is to prevent such a
frustration of its policy that provision is made for alternative
methods; either by alleging the fact of prior conviction in the
indictment and showing it upon the trial or by a subsequent
proceeding in which the identity of the prisoner may be ascertained
and he may be sentenced to the full punishment fixed by law.
Plumbly v. Commonwealth,
2 Met. 413, 415, per Shaw, C.J.
In the latter proceeding as well as in the former, the fundamental
rights of the defendant with respect to the ascertainment of his
liability to the increased penalty may be fully protected.
Nor is there any reason why such a proceeding should not be
prosecuted upon an information presented by a
Page 224 U. S. 627
competent public officer on his oath of office. There is no
occasion for an indictment. To repeat, the inquiry is not into the
commission of an offense; as to this, indictment has already been
found and the accused convicted. There remains simply the question
as to the fact of previous conviction. And it cannot be contended
that, in proceeding by information instead of by indictment, there
is any violation of the requirement of due process of law.
Hurtado v. California, 110 U. S. 516
Brown v. New Jersey, 175 U. S. 172
175 U. S. 175
Maxwell v. Dow, 176 U. S. 581
176 U. S.
The principles governing a proceeding of this sort, to inquire
into the fact of prior conviction, were stated in Ross's
(1824), 2 Pick. 165, 169-171. The Legislature of
Massachusetts (St. 1817, c. 176 approved February 23, 1818) had
provided for increased punishment upon second and third
convictions. Reciting that the previous conviction might not be
known to the grand jury or to the attorney for the commonwealth at
the time of the indictment and trial, the statute contained the
following provision closely resembling the one now under
"That whenever it shall appear to the warden of the state prison
. . . that any convict received into the same pursuant to the
sentence of any court shall have before been sentenced, by
competent authority of this or any other state, to confinement to
hard labor for term of life or years, it shall be the duty of the
said warden . . . to make representation thereof, as soon as may
be, to the attorney or solicitor general, and they or either of
them shall, by information or other legal process, cause the same
to be made known to the justices of the Supreme Judicial Court, . .
. and the said justices shall cause the person or persons, so
informed against, to be brought before them, in order that, if he
deny the fact of a former conviction, it may be tried according to
law, whether the charge contained in such
Page 224 U. S. 628
information be true. And if it appear by the confession of the
party, by verdict of the jury, or otherwise according to law that
said information is true, the court shall forthwith proceed to
award against such convict the residue of the punishment provided
in the foregoing section; otherwise the said convict shall be
remanded to prison, there to be held on his former sentence."
Laws of Mass. 1815-1818, pp. 602, 603. Ross, then undergoing
sentence for five years, was brought before the court pursuant to
such an information, and his term of imprisonment was increased. In
sustaining this sentence, the court, by Parker, C.J., said:
"In regard to the objection made to the process, this is not an
information of an offense for which a trial is to be had, but of a
fact -- namely that the prisoner has already been convicted of an
offense, and this fact must appear, either by his own confession or
by verdict of a jury or otherwise according to law before he can be
sentenced to the additional punishment. Is he to be sentenced for
an offense distinct from the one for which he has been tried upon
an indictment? We apprehend not, but the only question is whether
he is such a person as ought to have been sentenced, on his last
conviction, to additional punishment if the fact of a former
conviction had then been known to the court. There was no need of a
presentment by a grand jury, for no offense was to be inquired
into. That had been already done. An indictment is confined to the
question whether an offense has been committed. Here, the question
was simply whether the party had been convicted of an offense."
"It is said that, at common law, both offenses should be stated
in the same count. The question upon this is whether the
legislature had not a right to prescribe a different mode, and we
think they had."
In the case at bar, the record is silent upon the question
whether the fact of the former convictions was known
Page 224 U. S. 629
at the time of the last indictment and trial. This, however,
cannot be regarded as important from the constitutional standpoint.
The indictment did not allege the prior convictions; the issue was
not involved in the trial of the indictment, and the court could
not have considered these convictions in imposing sentence.
State v. Davis,
68 W.Va. 142, 150-151. They were not
considered until the subsequent proceeding was had. Doubtless, as
has been said, the object in providing the alternative proceeding
is to make sure that old offenders should not be immune from the
increased punishment because their former conviction was not known
when they were last tried. But this does not define the limit of
state power. Although the state may properly provide for the
allegation of the former conviction in the indictment, for a
finding by the jury on this point in connection with its verdict as
to guilt, and thereupon for the imposition of the full sentence
prescribed, there is no constitutional mandate which requires the
state to adopt this course even where the former conviction is
known. It may be convenient practice, but it is not obligatory.
This conclusion necessarily follows from the distinct nature of the
issue and from the fact, so frequently stated, that it does not
relate to the commission of the offense, but goes to the punishment
only, and therefore it may be subsequently decided.
2. It is insisted that the plaintiff in error was denied the
equal protection of the laws in that the statute arbitrarily
discriminates against the former convict, in a case like the
present one, by requiring an information, instead of indictment for
the sole reason that he has been received into the penitentiary, so
that, as the plaintiff in error puts it,
"if he be out of the penitentiary, the defendant must be
prosecuted by indictment in order to inflict the increased penalty;
but if he be in the penitentiary, he is denied the rights to
indictment, and must be prosecuted by information. "
Page 224 U. S. 630
The argument is without merit. The statute in question applies
to all those "convicted of an offense, and sentenced to confinement
therefor in the penitentiary" who previously have been sentenced to
a like punishment. The fact of such sentence, indicating the
gravity of the offense, affords a reasonable basis for
classification. Those who have been so sentenced once before, and
those who have been so sentenced twice before, are subjected,
respectively, to the same measure of increased punishment. In all
cases, before the increased punishment can be inflicted, there must
be conviction on the new charge; the former conviction must be
shown, and there must be a finding by a jury, if the fact is
contested, of the identity of the defendant with the former
convict. The distinction upon which the contention is based has
regard simply to the difference in procedure between the case where
the fact of former conviction is alleged in the indictment and
determined by the jury on the trial of the charge of crime and the
case where it is charged in the information and determined by a
jury in a proceeding thereby instituted. This, in view of the
nature of the issue to be determined, cannot be said to give rise
to a substantial difference in right, or to any inequality within
the meaning of the constitutional provision.
The Fourteenth Amendment is not to be construed "as introducing
a factitious equality without regard to practical differences that
are best met by corresponding differences of treatment."
Standard Oil Co. v. Tennessee, 217 U.
, 217 U. S. 420
A state may make different arrangements for trials under different
circumstances of even the same class of offenses (Brown v. New
Jersey, 175 U. S. 172
175 U. S. 177
Missouri v. Lewis, 101 U. S. 22
101 U. S. 31
Hayes v. Missouri, 120 U. S. 68
120 U. S. 71
Lang v. New Jersey, 209 U. S. 467
and certainly it may suitably adapt to the exigency the method of
determining whether a person found guilty of crime has previously
been convicted of
Page 224 U. S. 631
other offenses. All who were in like case with the plaintiff in
error were subject to the same procedure. He belonged to a class of
persons convicted and sentenced to the penitentiary whose identity
as former convicts had not been determined at the time of their
trial. As to these, it was competent for the state to provide
appropriate means for determining such identity.
3. What has been said, and the authorities which have been
cited, sufficiently show that there is no basis for the contention
that the plaintiff in error has been put in double jeopardy, or
that any of his privileges or immunities as a citizen of the United
States have been abridged. Nor can it be maintained that cruel and
unusual punishment has been inflicted. In re Kemmler,
136 U. S. 436
Moore v. Missouri, 159 U. S. 673
McDonald v. Massachusetts, 180 U.
; Howard v. North Carolina, 191 U.
; Coffey v. Harlan County, 204 U.
; Waters-Pierce Oil Co. v. Texas,
212 U. S. 86
212 U. S.
The questions raised under the constitution of the state are not
open here, and in no aspect of the case does it appear that any
right of the plaintiff in error under the Constitution of the
United States has been infringed.