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McDonald v. Massachusetts, 180 U.S. 311 (1901). Cases Citing This Book View Copy Cite
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cited 7× by 3 distinct cases, 1998–2013 · 2 courts · …the statute, imposing a punishment on none but future crimes, is not ex post facto. at p. 312 ✓
cited 5× by 5 distinct cases, last quoted 1970 · 4 courts · …the allegation of previous convictions is not a distinct charge of crimes, but is necessary to bring the case within the statute, and goes to the punishment only. ✓
cited 3× by 1 distinct case, last quoted 1978 · (i)t is possible that imprisonment in the state prison for a long term of years might be so disproportionate to the offense as to constitute a cruel and unusual punishment. ⚠ not in text
914 citation events (136 in the last 25 years) across 97 distinct courts.
Treatment trajectory · 1902 → 2026 · click a year to view as-of
1902 1964 2026
Top citers, strongest first. 50 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) United States v. Lozano
11th Cir. · 1998 · quote attribution · 1 verbatim quote · confidence high
the statute, imposing a punishment on none but future crimes, is not ex post facto.
examined Cited as authority (quoted) Commonwealth v. Rose (3×)
Pa. Super. Ct. · 2013 · quote attribution · 3 verbatim quotes · confidence low
the statute, imposing a punishment on none but future crimes, is not ex post facto.
examined Cited as authority (quoted) Mayes v. Moore (3×)
Fla. · 2002 · quote attribution · 3 verbatim quotes · confidence low
statutes imposing aggravated penalties on one who commits a crime after having already been twice subjected to discipline by imprisonment have long been in force ....
examined Cited as authority (quoted) United States v. Lozano (3×)
11th Cir. · 1998 · quote attribution · 3 verbatim quotes · confidence low
the statute, imposing a punishment on none but future crimes, is not ex post facto.
examined Cited as authority (quoted) Carmona v. Ward (3×)
2d Cir. · 1978 · quote attribution · 3 verbatim quotes · confidence low
(i)t is possible that imprisonment in the state prison for a long term of years might be so disproportionate to the offense as to constitute a cruel and unusual punishment.
examined Cited as authority (quoted) Carmona v. Ward (3×)
2d Cir. · 1978 · quote attribution · 3 verbatim quotes · confidence low
it is possible that imprisonment in the state prison for a long term of years might be so disproportionate to the offense as to constitute a cruel and unusual punishment.
cited Cited as authority (rule) Gonzalez, Enrique Jr.
Tex. App. · 2015 · confidence medium
McDonald v. Massachusetts, 180 U.S. 311, 313 (1901); White, 211 S.W.3d at 320 .
cited Cited as authority (rule) Gonzalez, Enrique Jr.
Tex. · 2015 · confidence medium
McDonald v. Massachusetts, 180 U.S. 311, 313 (1901); White, 211 S.W.3d at 320 .
cited Cited as authority (rule) Enrique Gonzalez, Jr. v. State
Tex. App. · 2014 · confidence medium
McDonald v. Massachusetts, 180 U.S. 311, 313 (1901); White, 211 S.W.3d at 320 .
discussed Cited as authority (rule) State v. Lamb
Idaho Ct. App. · 2009 · confidence medium
Parke v. Raley, 506 U.S. 20, 26-27 , 113 S.Ct. 517, 521-22 , 121 L.Ed.2d 391, 401-02 (1992); Spencer v. Texas, 385 U.S. 554, 560 , 87 S.Ct. 648, 651 , 17 L.Ed.2d 606, 611 (1967); Gryger v. Burke, 334 U.S. 728, 732 , 68 S.Ct. 1256 , 92 L.Ed. 1683 , 1687 (1948); McDonald v. Massachusetts, 180 U.S. 311, 313 , 21 S.Ct. 389, 390 , 45 L.Ed. 542, 547 (1901).
discussed Cited as authority (rule) United States v. Thomas Carr
7th Cir. · 2008 · confidence medium
McDonald v. Massachusetts, 180 U.S. 311, 312-13 (1901); Gryger v. Burke, 334 U.S. 728, 732 (1948); United States v. Washington, 109 F.3d 335, 337-38 (7th Cir. 1997); United States v. Rasco, 123 F.3d 222, 227 (5th Cir. 10 Nos. 08-1438, 08-2008 1997); United States v. Brady, 26 F.3d 282, 290-91 (2d Cir. 1994).
discussed Cited as authority (rule) People v. Romero
Cal. Ct. App. · 2002 · confidence medium
(See Solem v. Helm, supra, 463 U.S. 277, 296 [ 103 S.Ct. 3001, 3012-3013 ]; Rummel v. Estelle, supra, 445 U.S. 263, 284 [ 100 S.Ct. 1133, 1144-1145 ]; Gryger v. Burke (1948) 334 U.S. 728, 732 [ 68 S.Ct. 1256, 1258 , 92 L.Ed. 1683 ]; McDonald v. Commonwealth of Massachusetts (1901) 180 U.S. 311, 312 [ 21 S.Ct. 389, 390 , 45 L.Ed. 542 ]; Moore v. State of Missouri (1895) 159 U.S. 673, 678 [ 16 S.Ct. 179, 181 , 40 L.Ed. 301 ].) Rummel contradicts Andrade's and Brown's assertions that the punishment must be proportional to the “triggering” felony.
discussed Cited as authority (rule) Almendarez-Torres v. United States (2×)
SCOTUS · 1998 · confidence medium
The essence of Graham’s reason ing was that in the recidivism proceeding the defendant “was not held to answer for an offense,” 224 U. S., at 624 , since the recidivism charge “ ‘goes to the punishment only/ ” ibid., quoting McDonald v. Massachusetts, 180 U. S. 311, 313 (1901).
discussed Cited as authority (rule) People v. Mesce (2×)
Cal. Ct. App. · 1997 · confidence medium
Their rationale is that "increased penalties for subsequent offenses are attributable to the defendant's status as a repeat offender and arise as an incident of the subsequent offense rather than constituting a penalty for the prior offense." ( In re Foss (1974) 10 Cal.3d 910, 922 [ 112 Cal. Rptr. 649 , 519 P.2d 1073 ], italics added; see People v. Mills, supra, 6 Cal. App.4th at p. 1287 , quoting People v. Jackson (1985) 37 Cal.3d 826, 833 [ 210 Cal. Rptr. 623 , 694 P.2d 736 ], overruled on other grounds in People v. Guerrero (1988) 44 Cal.3d 343, 355 [ 243 Cal. Rptr. 688 , 748 P.2d 1150 ]; P…
discussed Cited as authority (rule) People v. Kilborn
Cal. Ct. App. · 1996 · confidence medium
The latter are not similarly situated for equal protection purposes.” (Smith v. Municipal Court (1978) 78 Cal.App.3d 592, 601 [ 144 Cal.Rptr. 504 ].) *1331 The basic rule, which we apply, is that the principle of equal protection of the laws “compels recognition of the proposition that persons similarly situated with respect to the legitimate purpose of the law receive like treatment.” (Purdy & Fitzpatrick v. State of California (1969) 71 Cal.2d 566, 578 [ 79 Cal.Rptr. 77 , 456 P.2d 645 , 38 A.L.R.3d 1194 ].) Legislative classifications must bear a rational relationship to a legitimate l…
discussed Cited as authority (rule) Witte v. United States (2×)
SCOTUS · 1995 · confidence medium
As we noted in Moore v. Missouri, 159 U. S. 673, 677 (1895), “‘the punishment for the second [offense] is increased, because by his persistence in the perpetration of crime, [the defendant] has evinced a depravity, which merits a greater punishment, and needs to be restrained by severer penalties than if it were his first offence.’” See also McDonald v. Massachusetts, 180 U. S. 311, 313 (1901) (commission of a second crime after conviction for first “show[s] that the man is an habitual criminal”).
discussed Cited as authority (rule) People v. Hatcher
Cal. Ct. App. · 1995 · confidence medium
(McDonald v. Massachusetts (1901) 180 U.S. 311, 313 [ 45 L.Ed. 542, 547 , 21 S.Ct. 389 ] [Massachusetts habitual offender statute did not violate the ex post facto provisions of the United States Constitution]; People v. Jackson (1985) 37 Cal.3d 826, 833 [ 210 Cal.Rptr. 623 , 694 P.2d 736 ], overruled on another point in People v. Guerrero (1988) 44 Cal.3d 343, 348-355 [ 243 Cal.Rptr. 688 , 748 P.2d 1150 ] [residential burglary occurring prior to the adoption of Proposition 8 may be used to enhance a crime occurring after the initiative was adopted by the voters]; People v. Mills (1992) 6 Cal.…
discussed Cited as authority (rule) Parke v. Raley (2×)
SCOTUS · 1993 · confidence medium
See Oyler v. Boles, 368 U. S. 448, 452 (1962); Graham, supra, at 623-624 ; McDonald v. Massachusetts, 180 U. S. 311, 313 (1901).
discussed Cited as authority (rule) People v. Jacobs
Cal. Ct. App. · 1984 · confidence medium
(See, e.g., Spencer v. Texas (1967) 385 U.S. 554, 559-560 [ 17 L.Ed.2d 606, 611-612 , 87 S.Ct. 648 ], and cases cited therein; People v. Dutton (1937) 9 Cal.2d 505, 507 [ 71 P.2d 218 ]; In re Rosencrantz (1928) 205 Cal. 534, 540 [ 271 P. 902 ].) The courts have reasoned that an habitual offender statute "does not deprive any one of the equal protection of the laws" because "[i]t affects alike all persons similarly situated." ( McDonald v. Massachusetts (1901) 180 U.S. 311, 313 [ 45 L.Ed. 542, 547 , 21 S.Ct. 389 ]; In re Rosencrantz, supra, 205 Cal. at p. 540 .) Almost 90 years ago, in Moore v.…
discussed Cited as authority (rule) People v. Jacobs
Cal. Ct. App. · 1984 · confidence medium
(See, e.g., Spencer v. Texas (1967) 385 U.S. 554, 559-560 [ 17 L.Ed.2d 606, 611-612 , 87 S.Ct. 648 ], and cases cited therein; People v. Dutton (1937) 9 Cal.2d 505, 507 [ 71 P.2d 218 ]; In re Rosencrantz (1928) 205 Cal. 534, 540 [ 271 P. 902 ].) The courts have reasoned that an habitual offender statute “does not deprive any one of the equal protection of the laws” because “[i]t affects alike all persons similarly situated.” (McDonald v. Massachusetts (1901) 180 U.S. 311, 313 [ 45 L.Ed. 542, 547 , 21 S.Ct. 389 ]; In re Rosencrantz, supra, 205 Cal. at p. 540 .) Almost 90 years ago, in M…
discussed Cited as authority (rule) Commonwealth v. Burgos
Mass. · 1984 · confidence medium
Because the prior offense charged in the indictment “is not part of the crime charged [and] ... relates only to punishment,” Commonwealth v. Murphy, 389 Mass. 316, 321 (1983), citing McDonald v. Commonwealth, 173 Mass. 322, 326-327 (1899), aff’d, 180 U.S. 311, 313 (1901), the defendant reasons that G.
cited Cited as authority (rule) Commonwealth v. Murphy
Mass. · 1983 · confidence medium
McDonald v. Commonwealth, 173 Mass. 322, 326-327 (1899), judgment aff’d, 180 U.S. 311, 313 (1901).
discussed Cited as authority (rule) Commonwealth v. Clayton
pactcomplphilad · 1980 · confidence medium
Co., Pa. 1940) as well as Com. v. Koczwara, 397 Pa. 575 , 155 A. 2d 825 (1959), McDonald v. Massachusetts, 180 U.S. 311, 313 (1901) and Graham v. West Virginia, 224 U.S. 616, 624 (1912) held that proof of prior conviction at trial was not an essential element of the offense.
discussed Cited as authority (rule) Rummel v. Estelle (2×)
SCOTUS · 1980 · confidence medium
See, e. g., Howard v. Fleming, 191 U. S. 126, 135-136 (1903); McDonald v. Massachusetts, 180 U. S. 311, 313 (1901).
discussed Cited as authority (rule) Government of the Virgin Islands v. Joseph Alexander Henry
3rd Cir. · 1976 · confidence medium
The allegation of previous convictions is not a distinct charge of crimes, but is necessary to bring the case within the statute and goes to the punishment only.” McDonald v. Massachusetts, 180 U.S. 311, 312-13 (1901); see also Graham v. West Virginia, 224 U.S. 616, 623 (1912); Moore v. Missouri, 159 U.S. 673, 677 (1895).
discussed Cited as authority (rule) People v. Blount
nycountyct · 1975 · confidence medium
The punishment is for the new crime only, but is the heavier if he is an habitual criminal * * * It is within the discretion of the legislature of the State to treat former imprisonment in another State, as having the like effect as imprisonment in Massachusetts, to show that the man is an habitual criminal.” (McDonald v Massachusetts, supra, pp 312-313; accord, Tyrrell v Crouse, 422 F2d 852; State of Kansas v Crowe, 207 Kan 473.) Thus, according foreign felony convictions the same status as domestic ones in the context of a recidivist statute is not an unconstitutional delegation of legisla…
cited Cited as authority (rule) White v. State
Nev. · 1967 · confidence medium
In McDonald v. Massachusetts, 180 U.S. 311, 312-313 (1901), that court said: *295 necessary to bring the case within the statute, and goes to the punishment only.
cited Cited as authority (rule) Ramón González v. Rivera
prsupreme · 1950 · confidence medium
Moore v. Missouri, 159 U. S. 673, 677 ; McDonald v. Massachusetts, 180 U. S. 311, 313; Graham v. West Virginia, 224 U.S. 616, 623 ; Carlesi v. New York, 233 U.S. 51, 58 .
discussed Cited as authority (rule) Commonwealth v. Boyer
Philadelphia Cty. Ct. Qtr. Sess. · 1940 · confidence medium
“The allegation of previous convictions is not a distinct charge of crimes, but is necessary to bring the case within the statute, and goes to the punishment only”: Graham v. State of West Virginia, 224 U. S. 616, 624 (1912); McDonald v. Massachusetts, 180 U. S. 311, 313 (1901) (construing similar statutes).
cited Cited as authority (rule) Dutton v. California
SCOTUS · 1937 · confidence medium
Carlesi v. New York, 233 U. S. 51 ; Moore v. Missouri, 159 U. S. 673, 678 ; McDonald v. Massachusetts, 180 U. S. 311, 312, 313 ; Graham v. West Virginia, 224 U. S. 616, 623 .
cited Cited as authority (rule) Filiatreau v. United States
6th Cir. · 1926 · confidence medium
As was said by Mr. Justice Gray in McDonald v. Mass., 180 U. S. 311, 313 , 21 S. Ct. 389, 390 ( 45 L.
examined Cited "see" STATE OF FLORIDA v. BRYANT MOSS (3×)
Fla. Dist. Ct. App. · 2021 · signal: accord · confidence high
Ed. 1683 (1948); accord McDonald v. Massachusetts, 180 U.S. 311, 313 , 21 S. Ct. 389 , 45 L.
discussed Cited "see" Joe Antonio Luna v. State (2×)
Tex. App. · 2021 · signal: see · confidence high
See McDonald v. Massachusetts, 180 U.S. 311 , 312–13 (1901); Scott v. State, 55 S.W.3d 593, 597 (Tex. Crim.
examined Cited "see" Engelbrecht v. State (5×)
Tex. App. · 2009 · signal: see · confidence high
See McDonald v. Mass., 180 U.S. 311, 312-13 , 21 S.Ct. 389 , 45 L.Ed. 542 (1901); Scott v. State, 55 S.W.3d 593, 597 (Tex.Crim.App.2001).
examined Cited "see" Darrin Henry Engelbrecht A/K/A Darrin H. Engelbrecht v. State (4×)
Tex. App. · 2009 · signal: see · confidence high
See McDonald v. Mass. , 180 U.S. 311, 312-13 , 21 S.Ct. 389 , 45 L.Ed. 542 (1901); Scott v. State , 55 S.W.3d 593, 597 (Tex. Crim.
discussed Cited "see" Edwards v. Ollison (2×)
C.D. Cal. · 2008 · signal: see · confidence high
See McDonald, 180 U.S. at 312-13 , 21 S.Ct. 389 .
examined Cited "see" Robert P. Sepeda v. State (3×)
Tex. App. · 2008 · signal: see · confidence high
See McDonald v. Massachusetts , 180 U.S. 311, 312 , 21 S.Ct. 389 , 45 L.Ed. 542 (1901); Shaw v. State , 529 S.W.2d 75, 76 (Tex.Crim.App. 1975).
examined Cited "see" Robert P. Sepeda v. State (3×)
Tex. App. · 2008 · signal: see · confidence high
See McDonald v. Massachusetts , 180 U.S. 311, 312 , 21 S.Ct. 389 , 45 L.Ed. 542 (1901); Shaw v. State , 529 S.W.2d 75, 76 (Tex.Crim.App. 1975).
examined Cited "see" Robert P. Sepeda v. State (3×)
Tex. App. · 2008 · signal: see · confidence high
See McDonald v. Massachusetts, 180 U.S. 311, 312 , 21 S.Ct. 389 , 45 L.Ed. 542 (1901); Shaw v. State, 529 S.W.2d 75, 76 (Tex.Crim.App.1975).
examined Cited "see" Ronnie L. Toler v. State (3×)
Tex. App. · 2008 · signal: see · confidence high
See McDonald v. Massachusetts , 180 U.S. 311, 312 , 21 S.Ct. 389 , 45 L.Ed. 542 (1901); Shaw v. State , 529 S.W.2d 75, 76 (Tex.Crim.App. 1975).
examined Cited "see" United States v. Flowers (3×)
9th Cir. · 2003 · signal: see · confidence high
See McDonald v. Massachusetts, 180 U.S. 311, 312-13 , 21 S.Ct. 389 , 45 L.Ed. 542 (1901); United States v. Ahumada-Avalos, 875 F.2d 681, 684 (9th Cir.1989); Wey Him Fong v. United States, 287 F.2d 525, 526 (9th Cir.1961) (citing McDonald).
discussed Cited "see" Commonwealth v. Olivo
Mass. App. Ct. · 2003 · signal: see · confidence high
See McDonald v. Commonwealth, 173 Mass. 322, 327 (1899), judgment affirmed, 180 U.S. 311, 313 (1901); Commonwealth v. Murphy, 389 Mass. 316, 320-321 (1983); Commonwealth v. Chavis, 415 Mass. 703 , 706 n.5 (1993); Bynum v. Commonwealth, 429 Mass. 705, 706-707, 708-709 (1999); Commonwealth v. Fernandes, 430 Mass. 517, 520 (1999), cert. denied sub nom.
examined Cited "see" Grant v. State (3×)
Fla. · 2000 · signal: accord · confidence high
See Gryger v. Burke, 334 U.S. 728, 732 , 68 S.Ct. *662 1256, 92 L.Ed. 1683 (1948); accord McDonald v. Massachusetts, 180 U.S. 311, 313 , 21 S.Ct. 389 , 45 L.Ed. 542 (1901) (finding that a statute which imposes a punishment only on future crimes is not ex post facto, even though a conviction prior to the statute results in increased punishment).
examined Cited "see" People v. LUGAS (3×)
Cal. Ct. App. · 2000 · signal: see · confidence high
The uniform answer has been that it is the second or subsequent offense which is punished, not the first; and that in determining the nature of the penalty to be inflicted, the legislature is justified in taking into consideration the previous criminal conduct of the defendant. [Citations.]" ( People v. Biggs (1937) 9 Cal.2d 508, 512 , 71 P.2d 214 ; see McDonald v. Massachusetts (1901) 180 U.S. 311, 313 , 21 S.Ct. 389 , 45 L.Ed. 542 ["The allegation of previous convictions is not a distinct charge of crimes, but is necessary to bring the case within the [habitual criminal] statute, and goes to…
examined Cited "see" State v. Manussier (3×)
Wash. · 1996 · signal: see · confidence high
See McDonald v. Massachusetts, 180 U.S. 311, 312 , 21 S. Ct. 389 , 45 L.
examined Cited "see" State v. Manussier (3×)
Wash. · 1996 · signal: see · confidence high
See McDonald v. Massachusetts, 180 U.S. 311, 312 , 21 S.Ct. 389, 390 , 45 L.Ed. 542 (1901); State v. Furth, 5 Wash.2d 1 , 104 P.2d 925 (1940); Cases of William Ross and William Riley, 19 Mass. (2 Pick) 165 (1824); Johnson v. People, 55 N.Y. 512, 514 (1874); 1 Joel Prentiss Bishop, Commentaries on The Criminal Law §§ 963-64 (5th ed. 1872); 3 Francis Wharton, Criminal Law § 3417.
examined Cited "see" Ex Parte Broxton (6×)
Tex. Crim. App. · 1994 · signal: see · confidence high
See McDonald v. Massachusetts, supra, 180 U.S. at 312 , 21 S.Ct. at 390 , 45 L.Ed. at 546-47 ; Sekou v. Blackburn, supra, at 112 ; Johnson v. District Court of Oklahoma County, supra, at 218-19. 6 This reasoning is equally applicable to the consideration of unadjudicated extraneous offenses at a capital murder punishment hearing.
examined Cited "see" United States v. John H. Mettler (3×)
7th Cir. · 1991 · signal: see · confidence high
See McDonald v. Massachusetts, 180 U.S. 311 , 21 S.Ct. 389, 390 , 45 L.Ed. 542 (1901) (increasing punishment for felony because of prior convictions does not violate ex post facto clause where punishment is for the new crime only).
discussed Cited "see" United States v. Richard Hoskins
6th Cir. · 1990 · signal: see · confidence high
See McDonald v. Massachusetts, 180 U.S. 311, 312 (1901) (increasing punishment for felony when defendant had prior convictions does not violate the ex post facto clause because the punishment is solely for the new crime). 37 Moreover, this court previously addressed, and resolved, a comparable ex post facto argument: 38 Previously, courts have held that an increase in sentence for a repeat offense does not violate the ex post facto clause simply because the first offense was committed before the passage of the repeat offender law.
examined Cited "see" United States v. Nancy Bucaro, Larry Lawrence, George Jose Turner, Andre Rashid Kirby and Monica Johnson. Appeal of Andre Kirby (3×)
3rd Cir. · 1990 · signal: see · confidence high
See McDonald v. Massachusetts, 180 U.S. 311, 312 , 21 S.Ct. 389, 390 , 45 L.Ed. 542 (1901) (increasing punishment for felony when defendant had prior convictions does not violate ex post facto clause because punishment is for the new crime only); Schramm v. United States Parole Comm’n, 767 F.2d 509, 512-13 (8th Cir.1985) (Parole Commission’s practice of considering prior misdemeanor and felony convictions in evaluating prisoner’s situation does not violate ex post facto clause because Commission is not increasing the punishment for the prior convictions themselves).
Retrieving the full opinion text from the archive…
McDonald
v.
Massachusetts
15-1381.
Court of Appeals for the D.C. Circuit.
Feb 25, 1901.
180 U.S. 311
Mr. Francis P. Murphy for plaintiff in error., Mr. Hosea M. Knowlton and Mr. Arthur W. DeGoosh for defendant in error.
Gray.
4 passages pin-cited by 5 cases
Pinpoint authority: #11,305 of 633,719
Citer courts: Second Circuit (6) · Eleventh Circuit (3) · Supreme Court of Florida (3) · Superior Court of Pennsylvania (3)
Mr. Justice Gray

delivered the opinion of the court.

The plaintiff in error ivas indicted at August terra, 1898, of the Superior Court in the county of Suffolk and State of Massachusetts, on the statute of Massachusetts, of 1887, chapter 435, section 1, by which “ whoever has been twice convicted of crime, sentenced and committed, to prison, in this or any other State, or once in this and once at least in any other State, for terms of not less than three years each, shall, upon conviction of a felony committed in this State after the passage of this act, be deemed to be an habitual criminal, and shall be punished by imprisonment in the State prison for twenty-five years: provided, however, that if the person so convicted shall show to the satisfaction of the court before which such conviction was had that he was released from imprisonment upon either of said sentences, upon a pardon granted on the ground that he was innocent, such conviction and sentence shall not be cónsidéred as such under this act.”

[*312] Section 2 provides that when it appears to the Governor and Council that the convict has reformed, they may release him conditionally from the rest of his sentence.

The indictment contained four counts, two charging the defendant with forging an order for money, and two with uttering as true a forged order for money; and further alleged that in April, 1890, he had been convicted in Massachusetts of perjury, and therefor sentenced and committed to the State prison for three years; and also in January, 1894, had been convicted in New Hampshire of obtaining property by false pretences, and therefor sentenced and committed to the State prison for four years.

The defendant pleaded not guilty, and was tried by a-jury, who returned a verdict that he was guilty of the whole indictment ; and the court thereupon adjudged him to be an habitual .criminal, and sentenced him to be punished by imprisonment in the State prison for the term of twenty-five years.

The defendant sued out a writ of error from the Supreme Judicial Court of Massachusetts, which affirmed the judgment. 173 Mass. 322. He then sued out this writ of error from this court to the Superior Court, in which the record remains.

The fundamental mistake of the plaintiff in error is his assumption that the judgment below imposes an additional punishment on crimes for which he had already been convicted and punished in Massachusetts and in N ew Hampshire.

But it does no such thing. The statute under which it was rendered is aimed at habitual criminals; and simply imposes a heavy penalty upon conviction of a felony committed in Massachusetts since its passage, by one who had been twice convicted and imprisoned for crime for not less than three years, in this, or in another State, or once in each. The punishment is for the new crime only, but is the heavier if he is an habitual criminal. Statutes imposing aggravated penalties on one who commits a crime after having already been twice subjected to discipline by imprisonment have long been in force in Massachusetts ; and effect was given to previous imprisonment, either in Massachusetts or elsewhere in the United States, by the statute of 1827, c. 118, § 19, and by the Revised Statutes of 1836,[*313] c. 133, § 13. It is within the discretion of the legislature of the State to treat former imprisonment in another State, as having the like effect as imprisonment in Massachusetts, to show that the man is an habitual criminal. The allegation of previous convictions is not a distinct charge of crimes, but is necessary to bring the case within the statute, and goes to the punishment only. The statute, imposing a punishment on none but future crimes, is not ex post facto. It affects alike- all persons similarly situated, and therefore does not deprive any one of the equal protection of the laws. Moore v. Missouri, 159 U. S. 673; Ross’s Case, 2 Pick. 165; Commonwealth v. Graves, 155 Mass. 163; Sturtevant v. Commonwealth, 158 Mass. 598; Commonwealth v. Richardson, 175 Mass. 202.

The statute does not impair the right of trial by jury, or put the accused twice in jeopardy for the same offence, or impose a cruel or unusual punishment. There is therefore no occasion to consider whether any of the provisions of the Constitution of the United States on these points can apply to the courts of the several States. In re Kemmler, 136 U. S. 436; Brown v. New Jersey, 175 U. S. 172; Maxwell v. Dow, 176 U. S. 581.

The suggestion of misjoinder of counts in the indictment, and the objection that instructions on the habitual criminal charge were first given by the court to the jury after they had said that the defendant was guilty of the specific offences charged, present no Federal question.

Judgment affirmed.