One of these writs of error was brought to reverse a judgment of the municipal court, for the last January term, on an information charging the prisoner with having been, at two different times, sent to the state prison, and discharged, and then convicted and sent a third time ; and the object of the information was, to have the additional sentence imposed, which the law inflicts for such third offence.
A doubt was suggested, whether a writ of error would lie to *410reverse the judgment upon such an information, it being rather a rev.val and continuance of the proceedings on the last previous conviction, and an additional judgment and sentence, than an original, distinct, substantive proceeding. But we can perceive no sufficient ground for such a doubt. The result is, no doubt, an additional punishment for the offence of which the prisoner was last convicted, aggravated by previous convictions, and sentences to the state prison ; but the mode of arriving at that result is by a new and distinct prosecution, commencing with the information, and followed by a separate and distinct sentence, imposed not necessarily by the same court which rendered the original judgment, but by a court invested by law with jurisdiction to hear and adjudicate on such information. Judgment on an information is a regular common law judgment; the statute authorizes proceeding by information, and therefore we think that the proper mode of inquiring into its validity is by writ of error.
An objection was taken to the information, because, instead of setting forth the former convictions and sentences by direct averment, it merely set forth a former information, in which they were averred. This is a mode of setting out the former convictions which seems irregular, and not to be commended, but whether it is a sufficient irregularity to invalidate the judgment, we have had no occasion to consider. (See post, 413.)
Some objections were taken to the validity of this judgment on the information, arising from alleged errors and defects in the judgments therein set forth as the basis of a judgment for additional punishment. But we are of opinion, that the validity of such previous judgments is not open to consideration on the information. Such judgments must be taken to be valid, until reversed for error. It is, therefore, not necessary to set forth the full and entire record of such previous conviction in extenso ; It is sufficient to set it forth with such particularity as to identify it, and indicate the nature and character of the offence charged, and to set forth the sentence or judgment, with so much exactness, as to show that it was such a conviction as brings the convict within the law providing for the additional nunishment sought for bv the information.
*411It having been understood, heretofore, that the validity of the previous judgments could not be drawn in question, on the ground of any supposed errors or defects therein, on a writ of error seeking to reverse the judgment on the information, two other writs of error have been brought by the convict, Wilde, with a view to reverse those previous judgments, which we will now consider.
One of the previous convictions, set forth in the information, was at the municipal court, June term 1835, in which the prisoner, by the name of William Wise, was charged with breaking and entering, on the 28th of April, 1835, in the night time, “ a certain house not then occupied as a dwellinghouse,” and stealing therein goods and chattels to the amount of about sixteen dollars. As this is brought within none of the cases of aggravated larceny, it is conceded by the Attorney General, that the sentence of one day solitary imprisonment and two years at hard labor in the state prison was not warranted bv law, and he does not object, therefore, to a judgment of re versal.
The other writ of error was brought to'reverse a judgment of the municipal court, rendered at December term 1833. The prisoner was indicted for cheating one Nathan Tufts by false pretences ; and on conviction was sentenced to pay a fine of fifty dollars and costs of prosecution, and if said fine and costs were not paid in ten days, then, in lieu thereof, that said Wilde be punished by solitary confinement one day, and afterwards by confinement to hard labor one year, in the state prison.
The error assigned is, that the law did not warrant this sentence. The first exception is, that St. 1815, c. 136, § 1, did not authorize a sentence to payment of costs. This statute, in providing for the punishment of cheating by false pretences, directed that any person, on conviction, “ be sentenced to pay a fine, not less than $40, and not exceeding $400, or be sentenced to be confined to hard labor, for a term not exceeding seven years.” In regard to costs, it has been held that where the statute authorizes a punishment by fine, costs may be awarded as incident, and that the party convicted may be committed *412till such fine and costs be paid. If costs are not authorized in terms, they are by necessary implication from the various statutes directing how and by whom a prisoner may be discharged from jail, who stands imprisoned for the non-payment of fine and costs only. St. 1833, c. 9. Rev. Sts. c. 145, § 3. Harris v. The Commonwealth, 23 Pick. 280.
Another exception is, that having been sentenced to pay a fine and costs, the prisoner could only be imprisoned until pay n.ent, or discharge in due course of law, and that this could not exceed three months. We are of opinion, that by St. 1788, c. 53, § 1, the court was fully authorized to impose the conditional or alternative sentence awarded in the present case. The convict was not sentenced to a year’s imprisonment, for non-payment of fine and costs ; but in the event of such non-payment within the time limited, then the sentence to payment of fine and costs became null, and the alternative sentence alone remained in force. See Rev. Sts. c. 139, §§ 2, 3.
The other error assigned is, that the statute of 1815, e. 136, on which this indictment for cheating by false pretences was founded, although it provided for hard labor for a term not exceeding seven years, did not authorize solitary imprisonment, and that it was not aided by St. 1812, c. 134, which was limited to cases then punishable by whipping, imprisonment in the county jail, or other like punishments. The court are of opinion that this objection is well founded ; that by the true construction of St. 1815, c. 136, it did not warrant a sentence to any term of solitary imprisonment, and therefore that in this respect the judgment was erroneous and must be reversed.
Two of the judgments, upon which this judgment on information was founded, being thus reversed, that judgment cannot be sustained ; and as it appears, by the last conviction and sentence, that the time for which the last sentence was imposed has now just expired, the court are of opinion that the prisoner is entitled to be now discharged from his imprisonment under the sentence upon the information.
Judgment on the information reversed.