¶1dissenting.
¶2The opinion of the court rightly holds that section 5054 is a highly penal statute; that it must be strictly construed against the Commonwealth, and that its operation may not be extended to any case not clearly within its terms. It “may not be extended by construction to cases not clearly within the language employed,” as stated in Wright v. Commonwealth and repeated in other cases and authorities cited in the opinion.
¶3But the result reached does, in my opinion, extend the statute by construction. The statute says that when the convict is received into the penitentiary and “has been sentenced to a like punishment in the United States prior to the sentence he is then serving,” he becomes amenable to the additional punishment prescribed by the statute. It has been made certain, says the opinion,, that when he was convicted and sentenced in 1947 for his third offense, “immediately upon his entry into the penitentiary he started serving the balance of his unexpired second term,” that is, the 1946 term. There had been only one conviction prior to that—the 1943 conviction. Necessarily, then, when the defendant was convicted and sentenced to ten years as a recidivist, he had been convicted only one time prior to the sentence he was “then serving”. In that case, his additional sentence was limited by the statute to five years.
¶4By the express wording of the statute, the only sentence that affords a basis for additional punishment is one that has been1 pronounced “prior to the sentence he is then serving.” If the legislature intended to say something else, the correction should be made by it. It would have been better if the statute had been worded so as to permit what has been done. It may be conceded that it ought not to be the way it is and that a different result would follow if the facts were different. But we must apply the statute as written to the facts as they are.
¶5The facts are that this defendant had been sentenced only *279one time prior to the 1946 sentence which he was “then serving”. In that case the statute says the court may sentence him to further confinement for a period of not more than five years. To get from the statute authority to sentence him to ten years involves a re-wording of the statute rather than a construction of it.
¶6Spratley and Staples, JJ., concur in this dissent.