The Bismarck tribune. [volume] (Bismarck, N.D.) 1916-current, 1934-06-19


prisonment in the penitentiary; every
other crime Is misdemeanor. When
a crime punishable by imprisonment
in the penitentiary is also punishable
by fine or imprisonment in q county
jail, in the discretion Of the court o.
jury, it Is, except when otherwise spe.
officially declared by law to be . fell
ony, q misdemeanor for Ill purposes
after judgment imposing punish !
ment other than imprisonment In the |
penitentiary.'
THE offense charged In the indict- |
ment against you is one punishable |
by a fine Of not to exceed $4,000 or |
for not to exceed two
years.
Assuming But Not Deciding
Assuming, but not deciding ct this
time, that the conviction Of q felonious |
violation Of the federal law would |
constitute the conviction Of q felony |
sufficient to create a vacancy under |
our state law, it is obvious that 1t Is !
impossible at this time to determine |
whether the Judgment to be entered
will be q judgment for q conviction |
Of felony or misdemeanor, as under |
section 9l97 above set forth the SEN
tence imposed by the court fixed the
nature Of the offense for all purposes
after judgment. The supreme court
Of Nebraska In the case Of Gaudy vs..
State. 10 Neb. 243, 4 N. w. 1919, spe-
officially held that under such q sta
tute as that upon which you were
tried. the judgment OF the court sen
fencing the defendant to q fine and
imprisonment for 90 days made the
defendant guilty Of nlisdemeanor
only.
"since 1t Is impossible to determine
at this time the status Of the offense
1t seems clear that no vacancy can
have been created by the verdict Of
the jury.
More cogent reasons, however. foe
holding that no vacancy exists ct
the present time are found In the
many decisions which hold that . con.
viction consists Of two parts, to wit:
A verdict or plea Of guilty and : judg-
ment upon that verdict.
Quotes Other Cases
As stated in People vs.. Fabian.
1872 N. Y. 443. lS L. r. A. IN. 81 6e4,
1T AM, st. Rep. DIT, IS N. z. 672 Is
ANN. Cas-. 100.
1T may be said, generally, that where
the contest Of the statute refers to
the successive steps In . criminal
case, or any particular stage Of such
a prosecution as distinguished from
the others, these words conviction
and convicted) apply simply and SOLE
" to the verdict Of guilty: but where
the reference Is to the ascertainment
Of guilt in another proceeding Ia it,
bearing upon the status or rights Of
the individual In subsequent case,
then q broader meaning attaches to
the expressions, and q conviction
Is not established, or . person deemed
to have been convicted unless It 10
shown that = judgment has been
pronounced upon the verdict.
This rule Is followed by the over
whelming weight Of the authorities.
See: State vs.. Roybal, 80 N. Mex.
$40, 273 ,Pac. ol0.
Crawford VS.. U. g. II Fed. (2d) $50,
50 App D. G. $50.
people vs.. Jennings, 40 N. Y. 3
81, l35 Misc. 800.
"Donneu v. Board. l2s Me. 523, 10
A. 153.
Commonwealth Y. Minnich, $50 p.
363, 05 A. 565.
Smith v. Commonwealth. la4 VI.
$50. lis s. E. TOT.
Burnett v. State. IS Tex. Grim. r.
81, POI 8. w. 400.
"Daughtrey V. State. 46 Fla. 100, IS
So. 3o7.
Dial v. Commonwealth, ~ Ky. u.
l33 S.'W. e76.
Gilmore '. State. ; OH. Grim. go.
los Pac. 4l6.
Commonwealth '. oorham. %
Mas. 40.
Marion '. State, l6 Neb. 80 20 N.
w. 100 Barker v. Almy 20 r. I. 3o7
80 AIT lSs.
"Hackett '. Freeman. 100 Iowa, ~
u N. w. 528.
State '. Townley. l47 No. 2os, =
8. w. 833.
Faunce V. People, 81 III. I'll. Francis
'. Weaver, rs Nd. 457.
q Technical Term
There are, It u true, some few au-
thofities which hold that the verdict
Of the jury constitutes = conviction,
but the modern authorities, with prac-
tical unanimity, hold that . convic-
ton +. - said BY Chief Justice Mar