
    [Philadelphia,
    April 15, 1826.]
    SMITH against The COMMONWEALTH.
    
      m ERROR.
    This court will not in general proceed upon a writ of error, contrary, to the agreement of the parties; but the rule is not applicable to the case of a judgment of imprisonment for life.
    Unless it appear on the face of an indictment for burglary, -what judgment was given ■ on a former indictment for the samé offence, it is error to sentence the defendant to imprisonment at hard labour during life. It is not enough if the indictment state that the defendant was convicted on the former indictment, and that the court gave judgment.
    
    Os the return of a writ of error to the judges of the Court of Common Pleas, holding a Court of Oyer and Texuniner for the city and county of Philadelphia, it appeared that the plaintiff in error, John Smith, was convicted of burglary at the January session of the Court of Oyer and Terminer, held in 1819, and sentenced to undergo an imprisonment for the term of seven years, one twelfth part of it in the solitary cells, the remainder at hard labour, to restore the property stolen, &e.
    On the 5th of December, 1821, he was pardoned by the governor and released ftom prison.
    At the April sessions of the .Court of Oyer and Terminer, he was again indicted for burglary. The indictment set forth his former conviction, and that the court gave judgment, but did not set forth what the judgment was, or the pardon.
    To the last indictment the defendant below, on the 5th of May, 1823, pleaded guilty, arid, on the same day, was sentenced to pay a fine of .one cent to the commonwealth, to restore the property stolen, and to undergo an imprisonment at hard labour during his natural life, &c.
    An agreement was returned with the record, signed by the defendant below, after'having pleaded guilty, but before he was sentenced, by which he agreed to waive all error so far as respected the sentence or judgment to be pronounced on the said indictment.
    When the case was called up for argument in this court,—
    
      Pettit, for the commonwealth,
    moved to quash the writ of error, because the plaintiff in error had agreed to waive it. A man cannot sue out a writ of error against his own agreement. Baring v. Shippen, 2 Binn. 169, per Yeates, J., and the authorities cited by him. The agreement was advantageous to the defendant below, because there were several other indictments against him, and he thought he had a better chance of pardon on one judgment than on several. The other prosecutions were dropped in consequence of this agreement.
    
      A. Randall, for the plaintiff in error,
    denied that the agreement extended to the judgment on this indictment.
    
      As-to the case presented upon the record, he said that the defendant below had been sentenced to imprisonment for life, though it did not appear that he had been convicted and sentenced for burglary before. The indictment only set forth, that the court gave judgment on the former indictment, without saying what the judgment was.
    Pettit, in reply.
    The indictment sets forth, that the defendant below was convicted on a former indictment, which is all the act of assembly requires. It also states, that the court gave judgment, which must be presumed to have been a legal judgment on a verdict of conviction.
   The opinion of the court was delivered by

Tilghman C. J.

This case comes before us on a writ of error to the Court of Oyer and Terminer for the county of Philadelphia. The error complained of, is that the defendant having been convicted of burglary, was sentenced to.imprisonment in the penitentiary, at hard labour, &c. for life. The attorney for the commonwealth moved this court to quash the writ of error, because the defendant had made an agreement in writing, that he would not bring a writ of error. This court will not, in general, proceed upon writs of error, contrary to the agreement of the parties. But the rule is certainly not applicable to capital, criminal cases. What consideration, can a man have received, adequate to imprisonment at hard labour for life? It is going but one step further to make an agreement to be hanged. T presume no one would be hardy enough to ask the court to enforce such an agreement; yet the principle, in both, cases, is the same. The motion to quash must therefore be rejected. But it was contended, on behalf of the commonwealth, that the judgment was good, because the defendant had been convicted of burglary once before. If this appeared on the face of the indictment, the judgment would have been good, because it is enacted by the act of the 22d of April, 1794, section 13, (3 Sm. L. 190,) ‘‘that if a man shall commit burglary a second time, and be thereof legally convicted, he shall be sentenced to undergo an imprisonment in the said jail and penitentiary house, at hard labour, during life,” &c. But it does not appear in this indictment, what judgment was given on the former indictment. It is indeed set forth, that the defendant was convicted on a former indictment, and the court gave judgment, But what that judgment was, is not said. When the law speaks of conviction, it means a judgment, and not merely overdid, which in common parlance is called a conviction. It is the opinion of the court, therefore, that it does not appear by this record that the defendant had been convicted of burglary before, and therefore the judgment of imprisonment, &c. during life, was erroneous, and should be reversed.

Judgment reversed.  