224 U.S.

Argument for Plaintiff in Error.

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; and 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.

Mr. D. W. Baker, with whom Mr. Frank J. Hogan, Mr. Everett F. Moore and Mr. D. B. Evans were on the brief, for plaintiff in error:

Defendant is a person within the jurisdiction of the State of West Virginia, and is denied by the said State the equal protection of the laws, because the statute arbitrarily discriminates among persons in the same class and condition. Art. III, § 4, Code, c. 152, § 1. It permits persons of his class to be proceeded against by information while all others have the right to be proceeded against only by indictment; so that the said statute denies even one and the same person the equal protection of the laws, in that if he be out of the penitentiary he is entitled as of right to the protection of the grand jury and its indictment returned and pending against him, but if he be in the prison this right is ipso facto taken arbitrarily from him and is replaced by the right to an information only,

Argument for Plaintiff in Error.

224 U. S

presenting and permitting the single issue of identity of person.

The statute requires the said prosecution against him to be by information, and the sentence to be to the penitentiary for life, whereas the constitution and laws of said State (except only this statute) require all acts or omissions punishable by imprisonment in the penitentiary to be prosecuted and punished "on a presentment or indictment of a grand jury," and not otherwise. Hodgson v. Vermont, 168 U. S. 272; Bowman v. Lewis, 101 U. S. 22, 33; In re Lowrie, 8 Colorado, 499; Connolly v. Union Sewer Pipe Co., 184 U. S. 540.

Applying the principles of the last-cited case, the West Virginia statute now in question denies the defendant the equal protection of the laws in the respects and for the reasons which we have already mentioned; and in that each section of the statute is so connected and interwoven with the other sections, the invalidity of any one section destroys the entire act. Caldwell v. Texas, 137 U. S. 692, 697; State v. Lewin, 53 Kansas, 697; Budd v. State, 22 Tennessee, 483; Rogers v. Alabama, 192 U. S. 226; Bell's Gap Railroad v. Pennsylvania, 134 U. S. 232, 237; Gulf, Colorado & Sante Fe Railway v. Ellis, 165 U. S. 150, 165; Magoun v. Illinois Trust & Savings Bank, 170 U. S. 283, 293; Cotting v. Kansas City Stock Yards Company, 183 U. S. 79, 100, 112.

So, in the case at bar, the statute is a positive and direct discrimination between persons in exactly the same class those who have suffered former convictions-based simply upon the fact that the prisoner is in the penitentiary. In re Landford, 57 Fed. Rep. 570.

That the statute violates the equality clause of the Federal Constitution, see West Virginia v. Davis, 69 S. E. Rep. 639, decided by the same court one week prior to this

case.

Thus the laws of West Virginia discriminate, so as to

224 U. S.

Argument for Plaintiff in Error.

put plaintiff in error into the penitentiary for life on an unsworn information, simply because he was in the prison, and in favor of Davis, so as to keep him out of the county jail, unless on indictment alleging, and proof showing, a former conviction.

Defendant is deprived of his liberty and property by the State of West Virginia without due process of the law in that the statute which requires the imprisonment of the defendant in the penitentiary for life under the sentence imposed on him under an unsworn information operates a deprivation of his liberty without due process of law. This aspect of the case is not controlled by Hurtado v. California, 110 U. S. 516, but see Stoutenburg v. Frazier, 16 App. D. C. 229, 235, 236; Curry v. Dist. of Col., 14 App. D. C. 423, 439; Lappin v. Dist. of Col., 22 App. D. C. 68, 77.

The statute conclusively presumes the fact and validity of the alleged prior convictions and concludes every defense against the defendant except only that of nonidentity of person; he is precluded from the right to present any defense to the alleged prior convictions—the main fact presumed against him; he cannot show a pardon; nor want of jurisdiction; nor acquittal of the prior charges of former conviction; nor any other defense whatever. Mobile, J. & K. C. R. R. v. Turnipseed, 219 U. S. 35, 43; Lindsley v. Carbonic Gas Co., 220 U. S. 61, 81.

As to what is and is not due process of law, see In re Kemmler, 136 U. S. 436, 448; Holden v. Hardy, 169 U. S. 366, 383.

Defendant's privileges and immunities as a citizen of the United States are abridged in making and enforcing the said statute, as he is thereby denied his immunity from double jeopardy. Ex parte Lange, 18 Wall. 163; In re Butler, 138 Michigan, 453; Herndon v. Commonwealth, 105 Kentucky, 197; Oliver v. Commonwealth, 113 Kentucky, 228; Commonwealth v. Phillips, 11 Pick. 28; Satter

field v. Commonwealth, 105 Virginia, 867; Scott v. Chichester, 107 Virginia, 933.

The case of Davis v. West Virginia, supra, shows that the statute makes a former conviction an element of the guilt of the defendant on a second offense being committed. Unless this be so, where is the warrant for the infliction of the increased punishment? Peoples v. Sickles, 156 N. Y. 541. See also Paetz v. State, 129 Wisconsin, 174, 9 A. & E. Ann. Cas. 767; Davis v. State, 134 Wisconsin, 632; People v. Craig, 195 N. Y. 190, and State v. Gordon, 35 Montana, 458.

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The statute and sentence inflict cruel and unusual punishment on the defendant. See The McDonald Case, 180 U, S. 311; The Moore Case, 159 U. S. 673; Weems v. United States, 217 U. S. 347, 362; Stoutenburg v. Frazier, 16 App. D. C. 229; Howard v. North Carolina, 191 U. S. 126, 136; In re Kemmler, 136 U. S. 436; McElvaine v. Brush, 142 U. S. 155.

Mr. William G. Conley, Attorney General of the State of West Virginia, for defendant in error.

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,

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. State v. Graham, 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 Marshall.

"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 one hundred and fiftytwo, the superintendent of the penitentiary shall give