
    Blackburn v. The State.
    
      Habitual Criminals— Who are—How indicted, convicted and punished—Constitutional law.
    
    1. The second section of the statute, passed May 4, 1885 (82 Ohio Taws, 237), known as the habitual criminal act, is sufficiently definite to authorize the indictment of a person charged, according to its provisions, with the commission of a third felony, his trial and conviction therefor, and his sentence to imprisonment in the penitentiary of the state during his natural life.
    
      2. To authorize a sentence of imprisonment for life under that statute, the indictment should allege that the defendant had been previously twice convicted, sentenced and imprisoned, in some penal institution for felonies, describing each separately. In such case the grand jury, at the time it finds an indictment for the third felony, is authorized, if the evidence warrants'.it, to include in the indictment the facts that the accused had been so convicted, sentenced and' imprisoned; and if the trial jury, in their verdict, find these facts to be true, and also convict him of the third felony, the court, after passing sentence of imprisonment for a specific term, as prescribed by the statute, should proceed to sentence him to imprisonment for his natural life.
    3. The statute does not create a new offense, but attaches an additional penalty to the commission of any felony,- where .the perpetrator thereof has been twice previously convicted, sentenced and imprisoned on account of other felonies committed by him.
    4. The statute, in its operation, does not conflict with section 10 of article 1 of the constitution of the United States, prohibiting “ ex post facto ” laws, nor with section 28 of article 2 of constitution of this state, prohibiting “retroactive” laws, although one, or both, of the previous felonies, charged against him, was committed, and the imprisonment on account thereof inflicted, before the statute in question was enacted.
    (Decided June 13, 1893.)
    Motion for leave to file petition in error to the Court of Common Pleas of Montgomery county.
    At the May term, A. D. 1890, of the Court of Common Pleas of Montgomery county, the following indictment was found by the grand jury against the plaintiff in error: “State of Ohio, Montgomery county: The court of common pleas, May term, in the year eighteen hundred and ninety. Montgomery county, ss. :
    “ The grand jurors of the county of Montgomery, in the name and by authority of the state of Ohio, on their oaths do present and find that David Blackburn, about the hour of twelve o’clock in the night season of the fourth day of April, in the year one thousand eight hundred and ninety, in the county of Montgomery, aforesaid, into a certain stable of Amos B. Miller and Eva W. Miller there situate and being, willfully, maliciously, forcibly and burglariously did break and enter, with intent thereby then and there the personal goods, chattels, property and money of said Amos B. Miller and Eva W. Miller in said stable then and there being feloniously, to steal, take, and carry away; and thirty seven chickens, each of the value of forty cents, and of the aggregate value of fourteen dollars and eighty cents of the personal property of said Amos B. Miller, then and there being found, then and there unlawfully and burglariously did steal, take and carry away.
    “And the grand jurors aforesaid, on their oaths aforesaid, do further present that said David* Blackburn heretofore, to-wit: At the June term, A. D. 1881, of the common pleas court of Miami county, Ohio, was duly convicted of an assault with intent to rob, and was by said court sentenced to a penal institution for felony, to-wit: The Ohio Penitentiary for the term and period of five j^ears, and that said Blackburn was soon thereafter committed to said penitentiary by the sheriff of said county, and was imprisoned in a penal institution for felony, to-wit: The Ohio Penitentiary for the period of five years, or until he was discharged by due course of law. And further that said David Blackburn, heretofore, to-wit: At the October term, 1886, of the court of common pleas of Montgomery county, Ohio was duly convicted of the crime of unlawfully receiving a stolen mare, knowing the same to have been stolen and with intent to defraud, and was by said court sentenced to a penal institution for felony, to-wit: The Ohio Penitentiary for the term and period of one year, and that said Blackburn was soon thereafter committed to said penitentiary by the sheriff of said county of Montgomery, and was imprisoned in a penal institution, to-wit: The Ohio Penitentiary for said period of one year, or until he was discharged by due course of law, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the.state of Ohio.”
    There was another count in the indictment, but not materially differing from the one recited.
    The plaintiff in error was tried'at the term in which the indictment was found, and the following verdict rendered against him: “ We, the jury, upon the issues joined in this case, do find the defendant, David Blackburn, guilty of burglary and larceny, as he stands charged in the first count of the indictment, and we find the value of the goods so stolen to be $14.80. And do further find the said defendant, David Blackburn, guilty of being an habitual criminal as he stands charged in the indictment.”
    The court, after adjudging him to imprisonment at hard labor for two years in the penitentiary of this state, proceeded as follows: “ And the said defendant, David Blackburn, having been found guilty of being an habitual criminal as set out in the indictment filed against him in this case, and being in .the custody of the court as above set forth, and being inquired if he had any thing to say why judgment should not be pronounced- against him on said charge, and having nothing but what had already been said, it is further ordered by the court that on the expiration of the term for which he has been sentenced he shall not be discharged from imprisonment in the penitentiary; but shall be detained therein for and during his natural life, as provided by section 2 of an act passed May 4, 1885, and found in vol. 83, Ohio Taws, page 237.”
    The two years for which he was sentenced having expired, and the board of managers and warden of the penitentiary still detaining him, under the life sentence, as an habitual criminal, he has presented to this court a petition by which he seeks to obtain a reversal of the judgment confining him for life as an habitual criminal, and asked leave to file the same.
    
      John J. Chester and N. B. Collins, for the motion.
    1. The grand jury can inquire of and present only ofienses committed within the limits of their own county. Revised Statutes, section 7194.
    2. There is no sufficient indictment here to support that part of the verdict referring to the habitual criminal. Article 1, section 10, constitution of Ohio; Revised Statutes, sections, 7194, 7388-10.
    3. There is no verdict here sufficient to support the sentence, as to being detained in the penitentiary during life. Revised Statutes, sections 6799, 6885.
    
      4. There is no sentence here except for the two years imprisonment for the burglary and larcency. Revised Statutes, section 6799; Larney v. Cleveland, 34 Ohio St., 599, and cases cited.
    5. The court had no power to sentence the plaintiff to be imprisoned or detained after the expiration of the two years, to-wit, after July 1st, 1892. Revised Statutes, section 6835, references, supra.
    6. This -statute is in violation of article 1, section 10 of the constitution of Ohio. Williams v. State, 12 Ohio St., 622; Page v. State, 3 Ohio St., 229; Morgan v. State, 13 Ind., 215; Cooley Const. Lim. pp. 266, 267, 283; Cummings v. Missouri, 4 Wall., 277; Ex parte Garland, 4 Wall., 333; 3 Story Const., 212; 3 Dali., 386; 6 Cranch, 87.
    7. It is also in violation of article 1, section 10 of the United States constitution. See references, supra.
    8. It is in violation of article 2, section 28, of the constitution of Ohio. Riardon v. Holden, 15 Ohio St., 207, 210.
    10. A sentence to begin after other sentences have expired, is void for uncertainty and indefiniteness. 34 Ohio St., 599, and cases there cited.
    
      John K. Richards, contra.
    
    The constitutionality of this act is impugned on the ground, first, that it puts the accused twice in jeopardy for the same offense, and, second, that it is an ex post facto, or retroactive law, providing a further or additional punishment for a crime committed before the act was passed.
    These objections have been in the past urged not only against laws similar to this providing for the detention of habitual criminials, but also against laws prescribing a greater penalty for the second offense. Obviously all such laws stand on the same footing.
    While the constitutionality of the habitual criminal act has never been directly passed upon by this court, it has been indirectly sustained in the Patterson case and in the Hiser case. Several common pleas courts have upheld the act, the court of Miami county in the case of Martin v. 
      The State, and the Franklin common pleas in the Hanley case, Judge Pugh presiding. In the matter of the petition of Edward Kline, the circuit court of Franklin county found in favor of the constitutionality of this act; the decision, is found in 6 Ohio Circuit Court Reports, page 215.
    In view of the fact that Blackburn had been convicted and imprisoned for two of the felonies charged in the indictment, prior to the passage of the habitual criminal act, it is insisted that as to him and as to the crime he had committed before the habitual criminal act was passed, the law is both retroactive and ex post facto, providing a new and additional punishment for a crime already committed, and that there fore he is twice put in jeopardy for the same offense.
    The reason of the constitutional provision against ex post facto laws, is the just and apparent one, that a man should not be punished for doing a thing which he did not know at the time he did it was against the law; and further that he ought not to suffer for doing an act a greater penalty than he knew or in law was presumed to know the doing of the act would make him liable to suffer.
    The answer to the claim of the other side, is that this law does not provide any additional punishment for the offense committed before its passage and for which the accused has already suffered; but it provides a more severe punishment for the third offense. The prior convictions are considered by the court touching the situation or character of the criminal, at the time he commits the third offense, and the degreee of punishment required in the’ interests of society.
    The validity of acts similar to this have frequently been before courts of last resort in other states, and universally been sustained. Ross case, 2 Pick., 165; Plumby v. Commonwealth, 2 Metc., 413; Commonwealth v. Marchand, 29 N. E. Rep., 578; Commonwealth v. Graves, 29 N. E. Rep., 579; Ram v. Commonwealth, 9 Grattan, 738; Ex parte Gutierrez, 45 Cal., 430; People v. Stanley, 47 Cal., 113 ; Ingalls v. State, 46 Wis., 647; Kelley v. People, 115 Ill., 584; Louisiana v. Hudson, 32 La. An,. 1052.,
   Bradbury, C. J.

The plaintiff in error challenges the power of the grand jury to return an indictment against him for being an habitual criminal; denies that the indictment states facts sufficient to constitute him an habitual criminal; denies the authority of the petit jury to find in their verdict that he is an habitual criminal, and the power of the court to sentence him to imprisonment for life as such. He bases his contention, first, upon the language of the habitual criminal statute, which he claims is too vague and uncertain to express any definite legislative intention; and, second, that if it can be construed so as to express a clear legislative intent to authorize such proceedings as were had in the court of common pleas in this case, then the act conflicts with both the state and national constitutions,. and is therefore void. So much of the statute as becomes material to consider, reads as follows:

Section 2, vol. 82, Ohio flaws, page237: “Everyperson who, after having been twice convicted, sentenced and imprisoned in some penal institution for felony, whether eommited heretofore or hereafter, and whether committed in this state or elsewhere within the limits of the United States of America, shall be convicted, sentenced and imprisoned in the Ohio penitentiary for felony hereafter committed, shall be deemed and taken to be an habitual criminal, and on the expiration of the term for which he shall be so sentenced, he shall not be discharged from imprisonment in the penitentiary, but shall be detained therein for and during his natural life, unless pardoned by the governor, and the liability to be so detained shall be and constitute a part of every sentence to imprisonment in the penitentiary; provided, however, that after the expiration of the term for which he was so sentenced, he may, in the discretion of the board of managers, be allowed to go upon parol.”* * *

The foregoing language of the statute has been made the subject of a severe analysis and criticism by counsel for the plaintiff in error. The circumstances, that the statute is supplemental to the provisions theretofore enacted for the management of prisoners confined in the penitentiary, instead of being, in terms, an increment to that title of the Revised Statutes which relates to crimes and their punishment, and to criminal procedure, is also adverted to as tending to render the legislative purpose still more obscure. The language of the statute is not as simple and precise as could be wished, but that its meaning is at all obscured by the circumstances that it is made a supplement to the statute which regulates the management of _ convicts in the penitentiary, cannot be maintained. No doubt, the subject of legislation should be kept steadily in view as an important factor in correctly construing the legislative language, in all'cases; and that subject may be made more apparent in most; if not in all instances, of construing a supplemental statute, by recurring to the original statute; for presumptively the legislature in enacting the supplemental act had in view some purpose, cognate, at least, to that which was the subject of the original statute.

The fact that the statute*under consideration was enacted as a supplement to the act “ relating to the imprisonment of convicts” (82 Ohio Law, 237), instead of being made supplementary to that title of the Revised Statutes which creates- and defines offenses, is therefore a significant circumstance, tending to show that the legislature was not contemplating the creation of a new offense. And, when we examine the language employed, there is an entire absence of any phraseology defining or creating any offense whatever. We therefore conclude that there was no purpose to create one. If, however, there was a purpose to create a class of convicts whose incorrigibility had been established by a series of convictions for felonies, it could not have been placed in any more appropriate connection than that in which it is found. But, in whatever connection, or in whatever terms the legislature may choose to express its will, it is the duty of the court to ascertain and declare that will, if it can be gathered from the language employed; and the connection in which the legislatnre may place the statute is a circumstance that can only become important when the language is ambiguous. To whatever criticism the language of the section under consideration is subjected, we think it clearly evinces an intention that upon every third conviction for a felony the convict shall be sentenced to a specific term of years in the penitentiary, during which the power of parole shall be suspended, and that on the expiration of this specific term he shall remain in the penitentiary until discharged by death, parole or pardon. Two additional consequences are thus attached to the third conviction ; the suspension of the power of parol for a specific term to be fixed by the court, and imprisonment for life thereafter, thereby securing society from the depredations of a dangerous criminal during a specific term, unless he should be pardoned by the governor, and thereafter for life if neither paroled nor pardoned.

Plaintiff in error also contends that if the statute under consideration should be construed so as to subject one guilty of a third offense to life imprisonment, yet under its provisions he would not become an habitual criminal until after his conviction, sentence and imprisonment for the. third felony; that until then the grand jury could not indict him as such, the jury find him guilty thereof, nor the court sentence him to imprisonment for life. On this part of the subject the intention of the legislature is more awkwardly expressed than elsewhere, but when the entire act is considered, it is quite clear that the liability to imprisonment during life is made by the statute an inseparable incident of every third conviction for a felony, the statute in express terms declaring that the liability to be so detained, shall be and constitute a part of every sentence to imprisonment in the penitentiary. The language of the statute is “every sentence; ” but that should be taken to mean every sentence for a felony falling under this statute—that is, a third felony—for it is only on account of a third felony that the convict is made liable to a life sentence. The statute in question did not change the established course of procedure; it attached certain consequences to a third conviction, and whatever averment, proof and verdict is necessary to establish this third conviction, must be had under the existing criminal procedure. This court held in the unreported case of Ex parte Hiser, that the indictment under this statute should set forth the two prior convictions, and the sentence and commitment of the prisoner to some penal institution on account thereof. The indictment against the plaintiff in error set forth those facts with sufficient particularity to apprise him of the evidence to be adduced to establish their existence, and to enable him to defend against them. The proof should cover every material averment of the indictment, and the verdict establish every fact made necessary by the statute to the judgment pronounced by the court. We therefore hold that the grand jury, the trial jury and the court of common pleas, were each authorized by law to perform the various functions which the record discloses they respectively performed during the progress of the prosecution.

The first of the two previous offenses charged against the plaintiff in error, and his conviction and commitment to a penal institution on account thereof, all occurred before the statute under consideration was enacted; and for that reason he contends that, as the statute under consideration imposes upon him, on account of this former offense, an additional penalty to that imposed by the law as it stood when he commited the offense, it has, as to him, in the case under consideration, an unconstitutional operation. This view of the operation of the statute is not without plausibility, because it is apparent that, were it not for this earlier offense and his conviction and imprisonment on account of it, the penalty denounced by the statute against one who commits a third offense couldnot have been imposed upon the prisoner under the facts disclosed by the record. That the earlier offense, conviction and imprisonment of the-prisoner, were necessary factors to establish his status of an habitual criminal and his consequent detention as such in the penitentiary for life, must be conceded.

The legal effect of those proceedings, however, was simply to advance him one step towards a class of offenders who were to be subjected to the heavier penalty. The additional penalty was not imposed as a punishment for the first offense, nor for the second one, but because, having been convicted of their commission, he became one of a class of dangerous criminals, against whom more rigorous measures should be invoked. Had he abandoned his evil practices, after his first inprisonment, or even after his second term had ended, the consequences of which he now complains would not have followed. This he did not do, but instead, chose to commit a third offense, and that too with his eyes wide open; for he knew, or was bound to know, when he committed this last offense, that he had become one of a class against whom severer measures had been declared to be necessary if he should again be convicted. It is the third conviction that devotes his future to continuous confinement. A. law cannot properly be considered retroactive when it. apprises one who has established, by previous unlawful acts, a criminal character, that if he perpetrates further crimes, the penalty denounced by the law will be heavier than upon one less hardened in crime. In ’such case the party is informed before he commits the subsequent offense of the full measure of the liability he will incur by its perpetration, and therefore does not fall within the class that is entitled to the protection afforded by the constitutional guaranty against the enactment of ex post facto, or retroactive laws, for the object sought by those guaranties, in respect to this kind of legislation, is that no transgressor of a penal statute, shall be subjected by subsequent legislation, to any penalty, liability or consequence, that was not attached to the transgression when it occurred.

The conclusions to which we have arrived are supported by the highest tribunals of a number of the states of the Union, and by authors of acknowledged authority in this department of jurisprudence. Cooley’s Cons. Eim., 327; 1 Bish. Crim. Eaw, section 959-965; Kelly v. The People, 115 Ill., 583; Ingalls v. The State,Wis., 647; Rand v. Commonwealth, 9 Grat., 738; The case of William Ross, 2Pick. (Mass.), 165; Plumbly v. Commonwealth, 2 Metcalf (Mass.), 413; Commonwealth v. Graves, 29 N. E. Rep. (Mass.), 579; Ex parte Gutierrez, 45 Cal., 430; People v. Peter Stanley, 47 Cal., 113; Commonwealth v. Marchand, 29 N. E. Rep. (Mass.), 578.

Motion for leave to file a petition in error overruled.  