
    *The Commonwealth v. John Bryant, alias John Hopkins.
    Convicts — Second Offence — Confinement—Statute.— A convict in the Penitentiary, against whom an Information is filed in the Superior Court of Law for Henrico, under the 16th section of the Penitentiary Act, charged with having heen received a second time into that prison for a second offence, may, on his being identified either by verdict or by confession, be sentenced by the said Court, to a portion of confinement in the solitary cells.
    An Information was filed in the Superior Court of Law for Henrico, under the 16th section of the Penitentiary Act, against the prisoner. It set forth, that the prisoner, now a convict in the Penitentiary, was convicted in April 1824, by the Superior Court of Law for Rockbridge county, of horse-stealing, and sentenced to five years confinement in the Penitentiary-house, and received there in pursuance of the said sentence: that afterwards, having escaped, he committed another offence, namely grand larceny, which, by the Laws of the Commonwealth, if there had been no such previous conviction, might have been punished with confinement for less than five years, and that for the said offence, he was convicted in October, 1824, before the Superior Court of Law for Nelson county, and sentenced to a confinement of three years in the Penitentiary-house, and received there in pursuance of the said last mentioned sentence: It makes profert of the several records of conviction, and avers, that the said convict, on his last trial before the Court of Nelson, had not been sentenced to the punishment prescribed by Law, for such second conviction, and that the question of his former conviction before the Court at Rockbridge, had not been made and decided on the last trial in Nelson: It averred, that the prisoner is the same identical person mentioned in each of the said records of conviction, and concluded with praying the judgment of the Court on the premises.
    The prisoner being set to the bar, and required to say whether he is the same person mentioned in each of the said records of conviction, acknowledged, after being duly cautioned, that he was the same person, and thereupon, a jury being sworn to ascertain the term of his imprisonment in the Penitentiary-house, did ascertain it by their verdict, to be ten years.
    *The Court, doubting whether it had any power to sentence the said prisoner to any portion of confinement in the Solitary Cells of the Penitentiary, referred that question to the General Court.
   After a conference by the Judges on the subject,

BROCKENBROUGH, J.,

now delivered the following opinion of trie Court:

The prisoner was charged, before the Superior Court of Law for Henrico county, under the 16th section of the Penitentiary Act, as being a second time convicted of a felony, and in pursuance of such second sentence, with having . been received into the Penitentiary. Being required to say whether he was the same person mentioned in each of the records of conviction set forth in the Information, he, in open Court, acknowledged that he was the same person. A jury being thereupon impan-elled and sworn, to ascertain the term of his imprisonment in the Public Jail and Penitentiary, did ascertain it to be ten years. The Court doubting whether it had any power to sentence him to any portion of confinement in the Solitary Cells thereof, adjourned that question to this Court, for its decision.

This Court is of opinion, that the 12th section of the Act which directs that “the Court shall ascertain, in their sentence, the time of confinement in the Solitary Cells,” applies to all convictions provided for by every olher section of the Act. If the Superior Court of Law for Nelson county, before whom this prisoner was convicted of a second offence, had been apprised of his having been before convicted and sentenced to the Penitentiary, and if he had been there proceeded against for this second offence, as he well might, under the 14th section (a) of the Act, it would have been the duty of that Court to have applied to the Case the rule prescribed by the 12th section, as to confinement in the Solitary Cells.

The Superior Court of Nelson having failed to adjudge him to receive the punishment prescribed for a second offence, it became the duty of the Superior Court of Henrico to proceed against him conformably to the directions of the 16th section of the Act; and that section directs, that the *said Court “shall pronounce sentence upon the said convict, of confinement in the said Jail and Penitentiary-house, as is herein provided.” Whatever judgment, then, the Court of Nelson ought to have rendered, if the whole Case had been before it, ought now to be rendered by the Superior Court of Henrico.

This Court doth therefore decide, “that the Superior Court of Law for Henrico county, has power to sentence the said John Bryant, otherwise called John Hopkins, to a portion of confinement in the Solitary Cells of the Public Jail and Penitentiary-house.” Which is ordered to be certified to the said Superior Court. 
      
      
        1 Rev. Code of 1819, p. 619, 620.
     
      
       1 Rev. Code of 1819, p. 619, 620.
     