State v. Woods

Bareows, J.

This is a complaint under B. S., c. 27, § 35, dated June 27, 1877, alleging the keeping and depositing of intoxicating liquors intended for unlawful sale by the defendant, on the 26th of said Jime and the day of the date of the complaint, “ in the dwelling-house and its appurtenances occupied by him, situated,” etc., . . “a part of which said dwelling-house is used for the purposes of traffic by said Woods; ” with a further allegation that the defendant was convicted December 20, 1876, of a violation of the provisions of the same chapter and section ■of the revised statutes.

*411 Defendant excepts to certain instructions touching the sufficiency of the warrant to authorize the search of the stable, where the liquors were seized, as an appurtenance of the defendant’s dwelling-house.

The facts and evidence stated in the exceptions bring the case clearly within the doctrines laid down by the court in State v. Burke, 66 Maine, 127; and the instructions complained of were conformable to those doctrines. Further consideration upon this point is needless. A reference to the previous decision is sufficient.

The defendant also excepts to the admission of the record of the previous conviction alleged in the complaint, claiming that section 4 of chapter 215, laws of 1877, does not authorize the imposition of the increased penalty upon subsequent convictions after the first offense, where the first conviction took place before chapter 215 took effect, and, if it was intended to have that effect, it would be, to that extent, ex post facto.

We think neither of these positions is tenable. The import of the section referred to in the statute of 1877 is unmistakable. The penalty for the first commission of the offense described in section 35 of chapter 27 of the revised statutes remains unchanged. From and after the time when chapter 215 of the laws of 1877 took effect, he who had been convicted of the offense described in R. S., c. 27, § 35, was warned that he laid himself liable to a heavier penalty upon every subsequent conviction in case he should thereafterwards repeat the offense. The defendant must suffer the penalty prescribed by the statute of 1877 for what he did after it became a law. It is not easy to see how the intention of the legislature that every subsequent repetition of the offense should be visited with a heavier punishment where the party charged had been previously convicted under R. S., c. 27, § 35, could be more plainly expressed. Nor is the law liable to objection as ex post facto. The offender is punished, not for what he had done before the statute of 1877 took effect, but for his subsequent violation of the law with the increased penalty before his eyes.

Whether, under like circumstances and conditions, a law should *412 be regarded as ex post facto, because it prescribed an increase of punishment upon a second conviction of compound larceny, was one of the questions before the court of Massachusetts in Ross's Case, 2 Pick. 165 , and the decision was adverse to the prisoner. This decision is referred to with approval by Shaw, C. J., in Plumbly v. Commonwealth, 2 Met. 413, 415 . And the doctrine of both these cases on this topic is expressly commended in the opinion of the Yirginia court of appeals in Rand's Case, 9 Gratt. 738 .

We find no substantial support for the defendant’s positions, either in principle or authority.

Exceptions overruled.

Appleton, O. J., Walton, Yirgin and Libbey, JJ., concurred.