On the trial of the issue raised by a plea of autrefois convict, the affirmative lies upon the defendant. It is for him to maintain by proof the allegation in his plea of a previous conviction, and to establish the identity of the offence charged in the complaint or indictment, with that of which he stands convicted. Archb. Crim. Pl. (5th Amer. ed.) 90. 1 Russell on Crimes, (7th Amer. ed.) 837, note i. Rex v. Sheen, *2112 Car. & P. 634. On this point, the ruling of the court below was right.
The other and more important question in the case arises on the refusal of the court to give the instruction asked for in behalf of the defendant, concerning the proof necessary to sustain the allegation, in the complaint, of a previous conviction for a similar offence. The complaint charged a sale of intoxicating liquor; it also alleged that the defendant had been previously convicted of a similar offence. The purpose of this last allegation was to render the defendant liable to the additional and aggravated punishment prescribed for a second conviction by St. 1852, c. 322, § 7. The ground taken by the counsel for the defendant was, that, to warrant a conviction on this last allegation, the Commonwealth was bound to prove that the sale charged in the complaint was made subsequently to such alleged previous conviction.' Upon a careful consideration of the terms of the statute, and the object which the legislature had in view in imposing additional and aggravated penalties, as a consequence of second and subsequent convictions of a violation of its provisions, we are of opinion that the defendant was entitled to the instruction for which he asked. Interpreted literally, the language of the statute would seem to justify the conclusion that it was necessary for the Commonwealth to prove only a previous conviction, without regard to the time when the offence on which such conviction was had was committed, in order to subject the defendant to the severer penalty provided in such cases. But such a literal interpretation would contravene the true intent and spirit of the statute.
In the first place, it would be difficult to reconcile it with the provision in the former section, which requires that, if the second conviction is more than one year from the first, the defendant shall be required to give a like bond as is required on the first conviction. This very clearly shows that by the term “ second conviction ” is intended a conviction of a second offence subsequent in point of time to the first conviction. It implies necessarily that the bond given on the first conviction was meant to comprehend an offence included in a second conviction, if *212committed during the year while the bond was in force. This could not be, if a second conviction, in the sense in which it is used in the statute, was intended to apply to an offence committed prior to the first conviction, because the bond, by its terms, can comprehend only offences committed subsequently to the first conviction.
But the more decisive and satisfactory view of the question is found in a consideration of the purpose which the legislature intended to effect by these provisions of the statute. The infliction of increased punishments, as a consequence of second and subsequent convictions of similar offences by the same person, is not unknown in criminal jurisprudence. Under our own system of criminal law, analogous provisions were long in force, by which persons convicted of offences punished by imprisonment in the state prison were liable to additional punishment upon each successive sentence to confinement therein. St. 1833, c. 83. Rev. Sts. c. 133, § 16. The sole object of all such penal enactments is to deter persons from the repeated commission of similar offences, by imposing additional and severer penalties for each successive violation of law; that is, to punish second offences more severely than first, and third more severely than second; and thus, by aggravating the punishment for each successive violation of law, to prevent persons from becoming old and hardened offenders. Such, we have no doubt, was the object of the provisions in the section of the statute under consideration. After a conviction of a first offence under the seventh section, the statute was intended to prevent a repetition of the offence, by holding up before the offender an increased punishment ; so that, after having suffered the first penalty, he might be thereby deterred from incurring the aggravated punishment consequent on a conviction of a similar offence subsequently committed. The main purpose of every humane penal code is to prevent the commission of crime. The law does not seek to take vengeance upon its violators. It strives by its penalties to warn and hinder rather than to punish. To hold that, under this statute, a person might incur the heavier punishment provided in case of a second conviction, for an offence committed prior to the *213first conviction, 'would be contrary to those humane principles, and would reverse the due order of punishment. It would punish the first, and of course the more venial offence, with a severer penalty than the second and more aggravated one. It would require very clear and explicit language to lead us to the conclusion that the legislature intended to establish any such system of punishment.
It is no answer to this view to say, that if a party has twice violated the law, he ought therefore to suffer the aggravated punishment without regard to the time when the offences were committed. Such an argument loses sight of the principle on which aggravated penalties are prescribed. That principle is that the offender is first to incur the lighter penalty, and be thereby subjected to the discipline which penal enactments are intended to exert upon the violators of law, before he can be liable to incur the more aggravated punishment. We are therefore of opinion that, by a time construction of the provisions of the statute by which additional punishments are prescribed, the second and third convictions therein specified are intended to be convictions of second and third offences, and that it is incumbent on the gov ■ arnment to prove that the offence charged against a party was committed subsequently to the previous conviction alleged in the complaint or indictment, in order to subject him to the higher penalties prescribed in cases of second and subsequent convictions
Exceptions sustained.