delivered the opinion of the court.
This writ of error brings under review a judgment of the Circuit Court of Dickenson county of conviction of the plaintiff in error, Elijah Wright, of murder of the first degree.
In addition to the charge of murder of the first degree the indictment alleges that the accused had been twice before sentenced in the United States to confinement in the penitentiary.
There was a demurrer to the indictment which the court overruled ; so that we are met at the threshold of the case with the inquiry, whether in a prosecution for murder of the first degree the allegation of previous convictions for felony is permissible under sections 3905 and 3906 of the Code.
Section 3905 is in these words: “When any person is convicted of an offense, and sentenced to confinement therefor in the penitentiary, and it is alleged in the indictment on which he is convicted, and admitted, or by the jury found, that he had been before sentenced in the United States to a like punishment, he shall be sentenced to be confined five years in addition to the time to which he is or would be otherwise sentenced.”
And section 3906 provides: “When any such convict shall have been twice before sentenced in the United States to confinement in the penitentiary, he shall be sentenced to confinement in the penitentiary for life.”
It has long been the policy of this Commonwealth to visit with cumulative punishment habitual offenders who come within the terms of these enactments. (The first statute on the subject was passed December 15, 1796. 2 Stat. at Large [Hew *852Series], 1796-1802, see. 24, p. 9.) We think, however, that both the phraseology and intendment of the present provisions preclude the possibility of their application to a prosecution for a capital felony, and demand that their operation be limited strictly to indictments for offenses punishable by confinement in the penitentiary only.
It is true that in a prosecution for murder of the first degree, upon the principle that an indictment for the greater includes the lesser offenses, the jury may in their discretion find the accused not guilty of murder of the first degree, but guilty of murder of the second degree or of voluntary manslaughter— both of which crimes are punishable by imprisonment in the penitentiary; or they may acquit of the felony and find him guilty of involuntary manslaughter, or of assault and battery. Yet it is likewise true, that if the accused be found guilty of murder of the first degree, as was done in this instance, then sections 3905 and 3906, manifestly can have no application to the case, because the statute unconditionally imposes the death penalty for that offense.
We conceive, therefore, that the only fair and reasonable construction that can be placed on the sections quoted is that they apply solely to cases where the accused is indicted and prosecuted for offenses punishable by confinement in the penitentiary, and not to indictments and prosecutions for capital felonies, though in such cases the jury may in their discretion find the accused guilty of a lesser offense.
These enactments, it must be remembered, are in a high degree penal, and consequently may not be extended by construction to cases not clearly within the language employed. Jennings v. Com’th, ante, p. 821, 63 S. E. 1080, 3 Va. App. 192; Sutherland v. Com'th, decided at the present term, ante, p. 834, 65 S. E. 15.
In the latter case, Judge Harrison, speaking for the court, says: “This is a penal statute, and it is an ancient maxim of the law that all such' statutes must be construed strictly against *853the State and favorably to the liberty of the citizen * * *. There can be no constructive offenses, and before a man can be punished his ease must be plainly and unmistakably within the statute.”
The rule is thus stated in 12 Cyc. 949, under the title, “Successive Offenses and Habitual Criminals”: “Statutes under which more severe punishment may be inflicted upon the accused when the crime of which he is convicted is a second or subsequent offense, being highly penal, should not be extended in their application to cases which do not by the strictest construction come under their provisions.”
The same principle is strongly stated by Shaw, C. I., in Ex parte Seymore, 1.4 Pick. (31 Mass.) 40.
The doctrine fairly dedueible from the authorities seems to be that such enactments do not apply to cases which may, but to eases which must, upon a strict construction, come within their language.
The subject is also quite fully treated in 8 Am. & Eng. Ency. of Law, 479, et seq, under the head of “Cumulative Punishment,” and in none of the numerous decisions there assembled, so far as we have had opportunity to examine them, has the rule been attempted to be applied to a prosecution, the primary purpose of which was to inflict capital punishment upon the accused. Indeed, the incongruity of such application would seem obvious. There can, of course, be no cumulative punishment in a capital case, and the manifest design and purpose of the legislature, as we have seen, was to prevent the repetition and increase of crimes by imposing additional imprisonment upon habitual offenders for successive offenses. But we cannot suppose that the legislature intended that the salutary statutes should be used to prejudice a prisoner on trial for his life, by opening wide the door to the admission of evidence of distinct offenses, tending, at least, to establish the bad character of the accused by showing that he is an old offender, on the theory that in a prosecution of that sort it is possible for the *854jury to find him guilty of an offense within the statute. If such construction were permissible, it might not infrequently result in the conviction of the accused of a capital felony upon evidence wholly inadmissible to establish his guilt. Surely, in the interpretation of these extremely penal statutes, the courts would not be warranted in adopting a construction which would i-ender such a result possible.
It was not the intention of the statute, even in cases to which it applies, by the introduction of proof of former convictions, io supply substantive evidence of the guilt of the accused in the principal case, but only to enhance the punishment in the event his guilt should be proved by independent testimony.
In Band’s Oase, 9 Gratt. 738', the accused was indicted for burglary and larceny under the Code of 1849, and the indictment also contained an allegation that he had been previously convicted of a felony in the Commonwealth of Massachusetts and sentenced therefor to confinement in the penitentiary. The statutory punishment for burglary was at that time confinement in the penitentiary not less than five, nor more than ten years. Code, 1849, ch. 192, see. 11, p. 728.
In 1796, the legislature passed “An act to amend the penal laws of the Commonwealth,” which provided for the establishment of the penitentiary, and the first section of which declared that “no crime whatsoever committed by any free person against this Commonwealth (except murder of the first degree), shall be punished with death within the same.” This remained the law as to burglary until 'February 7, 1866, when the crime was made punishable with death, or, in the discretion of the jury, by confinement in the penitentiary. Acts of 1865-6, p. 90. As remarked, in the revision of 1796, provision- was made for cumulative imprisonment for second convictions, and, in one form or another, such enactments have constituted part of our statute law hitherto.
In Band’s Case, the indictment failed to set out the time and place of the alleged former conviction, or that it was for an *855offense committed before tbe commission of that for which the prisoner was on trial. Consequently, the court held evidence of the prior conviction inadmissible, because only applicable to the faulty count; and for the error of the trial court in admitting this illegal testimony, over the general objection of the accused, set aside the whole judgment, and awarded a new trial. It was said that the motion of the accused to exclude the record of the former conviction, “was though not in terms, in substance and effect, a motion to the court to instruct the jury to disregard that portion of the indictment alleging such conviction.” In discussing the effect of the admission of such evidence, Daniel, Judge, at page 752, observes: “What is the effect of this error of the court? On the one hand it* is argued by the attorney general that it should only affect so much of the judgment as relates to the additional punishment; and on the other hand it is insisted by the prisoner’s counsel that it is cause for reversing the whole judgment, and remanding the case for a new trial. We can hardly say that the introduction of the evidence objected to was not calculated to prejudice the prisoner in the trial of the felony for which he was arraigned.” He then quotes the language of Park, Judge, in Rex v. Jones, 25 Eng. C. L. R. 453, “that if the jury were aware of the prisoner’s conviction it was (to use a common expression) like trying a man with a rope about his neck.”
Continuing, the learned judge, at page 755, says: “What influence the evidence may have had in deciding the question of the guilt or innocence of the prisoner of the charges of burglary and larceny, for which he was on his trial, no one can say. But it is not difficult to believe that, in a case of doubtful or conflicting evidence, such proofs might exert an influence on the minds of the triers prejudicial to the cause of the prisoner. And we think the error in permitting the evidence to go to the jury cannot be regarded as cured by the statement which it appears was made by the judge to the jury, that the records were admitted and were to be received for the sole purpose of *856showing that the prisoner had been previously convicted of a felony. Such a caution, though highly proper and calculated to guard the jury against yielding to any improper bias, could not wholly remove the unfavorable impressions which the introduction of the evidence must, most probably, have made on their minds. The allegation of the first conviction being faulty, the prisoner had the right to stand before his triers in the same plight as if such allegation had never been made. And if, upon his trial on an indictment containing no such charge, evidence such as that objected to had been introduced, there can be no doubt that its introduction would have been error entitling the prisoner to a new trial.”
If this result should follow in a prosecution in which the evidence would have been admissible had the allegation of the first conviction not been faulty, with how much more reason should it apply in a prosecution for a capital felony, in which such evidence was not admissible in any aspect of the case ?
It has been suggested that the construction we have given the statute would result in a miscarriage of justice, in the event the jury should find the prisoner guilty under the indictment of a less offense than murder of the first degree; that the evidence of prior offenses being excluded, the jury could not add the additional punishment required by the statute when the accused was found guilty of the lesser offense. This difficulty is, we think, removed by sections 4180, 4181, 4182 and 4183 of the Code.
Section 4180 provides: írWhen a person convicted of an offense, and sentenced to confinement therefor in the penitentiary, is received therein, if he was before sentenced to a like punishment, and the record of his conviction does not show that he has been sentenced under section thirty-nine hundred and five, or thirty-nine hundred and six, the superintendent of the penitentiary shall give information thereof, without delay, to the said Circuit Court' of the city of Richmond, whether it be alleged or not in the indictment on which he was so convicted, *857that he had been before sentenced to a like punishment.” And the other sections provide for the imposition of the additional punishment.
These complementary sections prevent a possible failure of justice in the instance suggested, and at the same time the accused is spared the injustice of having evidence of prior offenses introduced before the jury where he is upon trial for murder of the first degree.
Tor the foregoing reasons, we are of opinion that the objection of the prisoner to the introduction of evidence of former convictions in the State of Kentucky ought to have been sustained.
This view does not, however, vitiate the indictment. It is a good indictment for murder of the first degree, and the allegations of previous convictions must be treated as surplusage ;• and in that aspect of the ease the demurrer to the indictment was properly overruled.
The next assignment of error is to the action of the court in overruling the objection of the prisoner to the last question and answer in the testimony of Robert K. Harris, a witness for the Commonwealth, which undertook to give the dying declaration of the deceased, that he did not know of any motive on the part of the prisoner for shooting him, except that he was angry because the deceased had refused to rent him a certain piece of land.
This we think was admissible, though not conclusive evidence of the fact alleged, and it was competent for the accused to contradict it, as he sought tó do, by showing that he was not informed of the purpose of the deceased with respect to the land until after the homicide had been committed. The issue of fact thus raised was a proper one for the consideration of the jury upon all the evidence bearing upon the question.
Hor did the court, err in admitting the testimony of witnesses in regard to remarks of the accused while in jail, that “he did not begrudge what he had done (though he did not say what *858he had done) * * *, that he had it to do, and if it were to do over again he would do it.” It is true he did not mention the name of the deceased in that connection, yet if he had reference to some other transaction it was competent for him to show it. The evidence, though possibly of no great value, was rightly admitted..
The remaining assignment of error which demands consideration deals with instructions. Without undertaking to examine them in detail, it is sufficient to say that, when read together, the instructions given by the court fully and fairly stated the law of the case, both from the standpoint of the Commonwealth and of the accused. Of course, those in reference to alleged former convictions of the accused must be omitted.
As a new trial is to be granted, we shall refrain from expressing any opinion as to the weight or sufficiency of the evidence.
The judgment of the circuit court, for error in the admission of evidence of former convictions, must be reversed, the verdict of the jury set aside, and the case remanded for a new trial to be had not in conflict with the views herein expressed.