Ebenezer Evans vs. The Commonwealth, 3 Met. 453

Shaw, C. J. The first of these xvrits of error is brought to reverse a judgment of the municipal court, July term 1818, by which the prisoner, on being convicted of highxvay robbery, was sentenced to solitary imprisonment for the term of ten days, and afterward:! to confinement to hard labor in the state prison for life.

The error assigned is, that the court could not by law make solitary imprisonment any part of the punishment, and that the residue of the sentence to hard labor for life was erroneous, because it was necessarily dependent on the other erroneous sentence, and therefore fixed no certain time for its commencement. This exception is founded upon the ground that the St. of 1804, c. 143, § 7, on which the conviction was had, was void for uncertainty. This argument rests on a very slight verbal inaccuracy in the terms of the statute providing for the punishment of highway robbery.

The provision is, that any person, duly convicted, “ shall be punished by solitary imprisonment for such term, not exceeding two years, and by confinement after-wards to hard labor for life.” It is true there is nothing to which the term “such” can strictly apply. But it is impossible to mistake its meaning. It is equivalent to a term, or the term of.

With a slight variation of expression, it would be free from grammatical inaccuracy ; though perhaps not the best chosen expression which could have been used : For instance, “for such term as shall not exceed,” is equivalent in meaning, and not very different in expression from the term used in the statute. We think a statute of such immense importance to the peace of society, and the safety of persons and property, is not to be adjudged void for uncertainty, on account of any slight inaccuracy of expression, when it is impossible to mistake its meaning. This judgment is affirmed.

Another writ of error is brought to reverse the judgment for an additional punishment, rendered by this court, at March term 1835, on an information. This information states the previous convictions, by plain and direct averment, and is in this respect free from objection. In addition to an error assigned, that the three convictions and judgments, on which this judgment upon the information was rendered, have been shown to be erroneous and void — which is not true in fact — some others are assigne 1.

One is, that the information does not state, that of the second conviction and sentence, the convict was discharged “in due course of law,” according to the terms of St. 1832, c. 73, which was in force when the information was filed and the judgment thereon was rendered. We think that the averment in the information, that the prisoner was discharged in consequence of a pardon, is equivalent to an averment that he was discharged “in due course of law,” and that it is not necessary to use those words.

The information avers a specific means of discharge. ' And that such a discharge is in due course of law, is a matter of legal inference. Another matter assigned for error is, that as there was a demurrer to the information, the judgment, on overruling the demurrer, should have been that the prisoner answer over, instead of a judgment in chief. In an indictment for felony, such may be the rule. But this is not an indictment for felony, and is very little like such an indictment.

The provision of St. 1827, c. 118, § 20, was, that “if it appear by the confession of the party, by the verdict of a jury, or otherwise according to law, that the information is true, the court shall proceed,” &c. This was almost a literal transcript of St. 1817, c. 176, § 6.

By St. 1832, c. 73, (and also by St. 1833, c. 85, which repealed St. 1832,) it was provided that additional punishment should be awarded where it should be “ alleged and proved to the court,” that former sentences had been passed on the convict, and that he had been discharged therefrom in due course of law* The manner of proof was left, by these last cited statutes, as it stood in St. 1827, c. 118. And it is a most familiar rule of law, that a demurrer admits the facts that are well pleaded.

When, therefore, the prisoner demurred to the information, which, as has already been stated, well set forth the previous convictions, and also the discharge of the prisoner, the allegations in the information were “ proved to the court,” according to the provisions of the statutes. We suppose it is highly probable that the court, on a proper cause shown, after a demurrer overruled, would, on motion of the prisoner, allow him to withdraw his demurrer, and plead to the facts. But such, we think, is not the necessary form of the judgment.

If we were to look behind this judgment, we should presume, that as no such motion was made, the prisoner had no desire to deny the facts, averred in the information, which might probably have been easily proved. But if the judgment of respondeat ouster was not the necessary judgment, then the judgment in chief was not erroneous. And we think it was not. The result therefore is, that the judgment of this court on appeal, at March term 1835, awarding an additional punishment for seven years, is affirmed.

Two other writs of error were brought by the prisoner, to reverse judgments rendered against him for shopbreaking in the night time ; but as these depend upon the point decided in Devoe v. The Commonwealth, (ante, 316,) it is sufficient to refer to that case. Those judgments also are affirmed.