1. The first assignment of error is that the statute is contrary to Article XXIV. of the Declaration of Rights, whichprohibits ex post facto laws. This objection is disposed of by the recent decision in Commonwealth v. Graves, 155 Mass. 163. *600The date of the larcenies charged in the indictment was after St. 1887, c. 435, went into effect.
2. The second assignment is that the statute is contrary to Article XXVI. of the Declaration of Rights, which is as follows: “ No magistrate or court of law shall demand excessive bail or sureties, impose excessive fines, or inflict cruel or unusual punishments.” This article is directed to courts, not to the Legislature. Commonwealth v. Hitchings, 5 Gray, 482, 486. In the statute, nothing is left to the discretion of the court in fixing the sentence. Moreover, the plaintiff in error does not contend that the length of the term fixed is so great as in itself to show that the punishment is cruel and unusual for the offence; but he says, “ All punishments inflicted under an unconstitutional law are cruel and unusual,” thus resting on other grounds of objection to the validity of the statute itself. Apart from the objection that the statute is ex post facto, the only ground of unconstitutionality urged is that the statute imposes the heavier punishment upon one who has twice before been sentenced and committed to the state prison, while others who have been convicted of the same crimes and sentenced to jails or houses of correction escape this heavier punishment. This argument rests on a misreading of St. 1887, c. 435, § 1, which says nothing about a prior sentence to the state prison, but speaks of having been “ sentenced and committed to prison in this or any other State.” The word “ prison ” as thus used is not limited to the state prison, but includes all places of. imprisonment for crime. The context shows this plainly, and this is the common meaning of the word as used in the Public Statutes. See Pub. Sts. c. 215, §§ 5, 14, 15, 28, 29; c. 219, §§ 1, 4, 5, 13, 31, 32; c. 220, §§ 31, 51, 52, 72, 73, 74; c. 221, §§ 43, 44, 47, 49, 50, 51, 53; c. 222, §§ 2, 3, 8, 11, 12, 13, 15, 17, 20, 24. Beard v. Boston, 151 Mass. 96. Leonard v. Leonard, 151 Mass. 151. The whole foundation of the argument fails, and we need not consider what force it might have if the statute was different.
3. The third assignment of error is that the statute is contrary to Article XII. of the Declaration of Rights. This is the article requiring that charges of crime shall be formal. The plaintiff in error objects to the indictment that it did not in terms set forth that he was an habitual criminal, or that he was *601indicted under the statute. The indictment in two counts charged two distinct larcenies, and then proceeded to aver two former convictions, one for breaking and entering and one for embezzlement, upon each of which he had been sentenced and committed to the state prison. In this respect, the indictment conformed to the rule as held in Commonwealth v. Harrington, 130 Mass. 35, and Tuttle v. Commonwealth, 2 Gray, 505, and it was not necessary to go further and allege the conclusion of law that he was an habitual criminal. Commonwealth v. Sanborn, 14 Gray, 393. 1 Bish. Crim. Proc. § 515, and cases cited. Moreover, the objection was merely formal, and to avail should have been taken at the trial. Commonwealth v. Chiovaro, 129 Mass. 489, 493, 497.
4. The fourth assignment, as amended, is that the statute is contrary to § 10 of Article I. of the Constitution of the United States, which prohibits ex post facto laws. The decision in Commonwealth v. Graves, 155 Mass. 163, in its reasoning, applies as well when the objection is founded on the Constitution of the United States, as when it rests upon the State Constitution.
5. The fifth assignment, as amended, is that the statute is contrary to the Fourteenth Amendment of the Constitution of the United States. The argument addressed to us under this head is similar to that urged in support of the second assignment, and seems to rest upon the ground stated in the brief of the plaintiff’s counsel, that the statute unjustly discriminates against persons in the plaintiff’s situation, “ and infringes the fundamental privileges and immunities of equal protection to their liberty and equal justice in the courts.” We do not see anything else in this objection except that the statute is in its nature ex post facto, and that it makes an unjust discrimination against criminals who have previously been sentenced to the state prison. Both of these grounds have been dealt with already, in considering the second assignment.
The sixth and seventh assignments of error are not insisted on in the brief of the plaintiff in error.
None of the assignments of error being supported, the entry must be,
Judgment affirmed.