Plaintiff in error, C. William Lawson, was indicted in the Criminal Court of Raleigh County, charged with malicious wounding of Pete Corey. The indictment also charged that Lawson had twice been convicted of felonies, one conviction being in the Circuit Court of Lee County, Virginia, and the other in the District Court of the United States for the Southern District of West Virginia. He entered a plea of not guilty, and a trial was had resulting in a verdict of guilty of the offense of malicious wounding as charged and that theretofore he had twice been convicted of a felony in the United States. After overruling a motion to set aside the verdict, the trial court sentenced Lawson to life imprisonment in the penitentiary. On petition of Lawson to the Circuit Court of Raleigh County a writ of error and supersedeas was denied, and he brings the case here for review.
Evidence introduced on behalf of the State shows that Lawson entered Corey's place of business in Beckley, the Rainbow Lunch, on the evening of September 2, 1941, and, after some discussion about obtaining change for a quarter, engaged in an altercation with Corey, in the course of which Corey was beaten about the head by Lawson with a table leg. Corey secured a pistol from beneath a counter during the scuffle and in the ensuing struggle for possession of it, the pistol was discharged and a customer in the lunch room, H. K. Stairs, was wounded in the leg. From the beating administered by *Page 3 Lawson, Corey sustained two lacerations on the back of his head, each requiring four or five stitches. The errors assigned by plaintiff in error relate to procedure, and, therefore, this brief recital of the factual background will suffice.
Plaintiff in error filed a plea of former jeopardy in which it is alleged that he was indicted at the October, 1940, Term of the Criminal Court of Raleigh County, charged with the crime of receiving stolen goods, which indictment also charged that he had twice been convicted of offenses punishable by confinement in a penitentiary, and that upon the trial under that indictment he was acquitted. He further alleges that the former convictions alleged in that indictment are the same as those alleged in the indictment in this case, and asserts that such acquittal bars the charges of prior convictions contained in the indictment herein. A charge of prior conviction does not constitute a charge or allegation of the crime for which a person is being tried, but is merely an allegation of the status of the defendant, which, if supported by proof, determines the extent of the punishment to be imposed and has no connection with the offense for which defendant is being tried, except to determine his punishment in the event he is found guilty thereof. State v. Graham, 68 W. Va. 248,69 S.E. 1010, 40 L.R.A. (N.S.) 924. The defendant had already been convicted of felonies in Virginia and in the Federal District Court. Therefore, there is no question of former jeopardy, and the demurrer to the special plea asserting former jeopardy was correctly sustained.
Under our practice a charge of former conviction, as well as the principal or substantive charge of crime, is submitted to the same jury. Code, 61-11-19, as amended by Chapter 26, Acts 1939. The charge of former convictions must be proved with the same degree of certainty as the charge of the substantive offense, but the evidence to establish such convictions should not be emphasized to the extent that the defendant will be prejudiced thereby. State v. Stout, 116 W. Va. 398,180 S.E. 443. The fact of prior conviction and identity of the accused as *Page 4 the person so convicted are the necessary elements to be proved. The first may be proved by a formal record; the other by evidence which establishes the identity of the person on trial as being the same person formerly convicted, and rarely is it necessary to go farther. In this case the State not only identified the defendant by means of oral proof and comparison of fingerprints, but, in addition, submitted to the jury photographs of defendant from the prison records of the Virginia and Federal penitentiaries, each photograph prominently showing the prison number of plaintiff in error. The photographs are attached to records including data with respect to the commission of offenses other than those alleged in the indictment. The trial court excluded all data appearing on the photographs and prison records except the fingerprints and photographs, which were admitted over the objection of Lawson. Two expert witnesses testify that the fingerprints of Lawson taken on the day of his trial, when compared with those appearing on the prison records from the Federal Penitentiary at Atlanta, Georgia, and the State Penitentiary at Richmond, Virginia, as introduced in evidence, show that he is the same person who served terms therein. It is apparent that in the absence of denial that this was sufficient identification of the accused. No reason is perceived why the photographs should have been submitted to further identify him. The admission of the photographs overemphasized the former convictions of the accused, was prejudicial to him, and contrary to the rule laid down by this Court in the case of State v. Stout, supra. InState v. Smith, 128 Or. 515, 273 P. 323, it was held that photographs and fingerprints are admissible to identify an accused as a previous offender for the purpose of increased punishment; but under the law of the state of Oregon, as quoted in the opinion, separate juries try the issue of guilt of the accused as to the substantive crime and as to former convictions. Since in this jurisdiction both issues are submitted to the same jury, we believe that the evidence of former convictions should be admitted with caution and restricted in its application. State v. Stout, supra; State v. *Page 5 Fisher, 123 W. Va. 745, 18 S.E.2d 649. We do not believe that any formula can be prescribed as to the amount of evidence necessary but where the identity is sufficiently proved, as here, admission of additional testimony which further emphasizes the former convictions is erroneous.
We take notice of the broad application of the provisions of Code, 61-11-19, as amended, requiring life imprisonment of a person who has been twice before convicted in the United States of crimes punishable by confinement in the penitentiary. It is conceivable that there may be crimes which are punishable by confinement in a penitentiary in other jurisdictions and that the same crimes would be classed as misdemeanors under our laws. In such event, it would seem proper that the laws of this State should be considered in determining the grade of the crimes for which there have been former convictions.
Plaintiff in error asserts that the trial court erred in admitting, over objection, testimony of Tom Bostic and wife, who reside near the home of the accused. Their testimony is to the effect that the wife and son of the plaintiff in error, a short time before the altercation with Corey, were hiding in the woods near their home, and that Lawson was looking for them with a club or stick in his hand, which testimony was admitted by the trial court on the theory that it tended to show thequo animo of Lawson. The inference that they were hiding from Lawson in fear of bodily harm was denied by Lawson's wife and son. In State v. Waldron, 71 W. Va. 1, 75 S.E. 558, it was held error to reject testimony showing that, shortly before the murder with which defendant was charged, deceased had engaged in a fight with a person other than defendant. There are other holdings of a similar nature in cases decided by this Court.State v. Arrington, 88 W. Va. 152, 106 S.E. 445; State v.Lutz, 85 W. Va. 330, 101 S.E. 434. In the case of State v.Arrington, supra, threats made by the deceased and not communicated to defendant were held relevant and admissible where the accused claimed self-defense and the evidence was conflicting as to who was the aggressor. In the case of State v. Lutz, supra, a threat made by the accused *Page 6 that he would kill anyone who undertook to arrest him was held admissible to show mental condition of the accused, who actually carried out his threat by killing a police officer.
Reasons for admission of testimony of other acts and conduct of the accused to show intent are non-existent in this case. Inferences may be drawn from the testimony in question here, from which it may appear that Lawson was tyrannical in his household and cruel to his family, but we do not believe that such showing has any bearing upon his guilt of the charge of malicious wounding. The evidence of the Bostics falls short of revealing any actual animus or actual use of whatever weapon Lawson had in his hands when he was observed by the witnesses. Further it cannot be said that because his wife and son were the objects of his anger at the time of the Bostics' observation that the same motives actuated Lawson in his attack upon Corey. We do not believe that any inferences which the jury could draw from such testimony were relevant. It follows that defendant was prejudiced thereby.
For the reasons herein stated, we reverse the judgments of the Circuit Court and the Criminal Court of Raleigh County, set aside the verdict and award defendant a new trial.
Judgments reversed; verdict set aside; new trial awarded.