by the trial judge on May 25, 1931, judgment was being entered pursuant to the Habitual Criminal Act of the Commonwealth of Pennsylvania.
The Act of 1929, supra, by its terms imposes no requirement that sentences increased thereunder specifically disclose that such extended term is imposed in accordance with the Act. Section 5 of the Act, 19 P.S.Pa. § 925, unquestionably indicates that such requirement does not exist. It says, 'A person need not be formally indicted and convicted as a previous offender in order to be sentenced under this act.' Commonwealth ex rel. Cody v. Smith, Warden, 327 Pa. 311, 315, 193 A. 38.
There is no question that the petitioner committed a crime to which the Act is applicable within the five year period contemplated therein. He admits said fact to be true.
The Act of 1929, supra, provides merely for the punishment of the crime committed within the state, and after the passing of the Act, by making a sentence greater if the defendant had committed previous offenses. Said Act does not violate the provisions of the Federal and State Constitution in that it punishes a defendant twice for the same offense. Commonwealth ex rel. Foster v. Ashe, Warden, 336 Pa. 238, 8 A.2d 542.
It is not the previous crimes upon which the defendant is again indicted, tried or sentenced, but they are taken into consideration only in order to determine the punishment to be imposed for the crime then under consideration; it being a well known principle of penology that an habitual criminal should receive a more severe sentence than a first offender. Commonwealth ex rel. Foster v. Ashe, Warden, supra.
The sentence as an habitual criminal is not to be viewed as either a new jeopardy or additional penalty for the earlier crimes. It is a stiffened penalty for the latest crime, which is considered to be an aggravated offense because a repetitive one. Gryger v. Burke, Warden, 334 U.S. 728, 68 S. Ct. 1256, 92 L. Ed. 1683.
It is for the Pennsylvania courts to say whether the sentencing judge made an error in construing the Pennsylvania Habitual Criminal Act, and an error by a State court in construing State law is not a denial of due process under the Federal Constitution. Gryger v. Burke, Warden, supra.
There is nothing in the record in the instant case which impeaches the fairness and temperateness with which the trial judge approached his task. His action has been affirmed by the highest court in the Commonwealth of Pennsylvania. Gryger v. Burke, Warden, supra.
The sentence imposed by the State court was not contrary to the Pennsylvania Habitual Criminal Act, and the petitioner has not been denied any rights given to him by the Constitution of the United States.
Although I feel the sentence was severe, this is not such a case as would require the Federal courts to interfere with the administration of justice in the State courts, and discharge the petitioner through a habeas corpus proceeding. The Parole Board in the Commonwealth of Pennsylvania is the agency through whom the severity of the sentence may be considered.
The petitioner's application for writ of habeas corpus is denied.
An appropriate order is entered.
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