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 lawabiding 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 5th and 14th 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, -L.R.A. (N.S.) -, 69 S. E. 1010. 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 comvicts 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 23d or 24th section of chapter 152, the superintendent of the penitentiary shall give 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 sentenced.'
'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.' 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, chap. 199, which in turn had been taken from the Code of 1849, chap. 199.