may be punishable by imprisonment in the penitentiary" to be a felony, does not have any bearing upon the case, unless it is to show that in the legislative mind the liability to such punishment fixes the grade of the offence and not the punishment actually inflicted.

In the argument for the defendant it has been assumed that "conviction" of a crime includes and is the result of the judg ment or sentence of the court imposing the punishment prescribed therefor. But this is altogether a mistake. The term conviction, as its composition (convinco, convictio) sufficiently indicates, signifies the act of convicting or overcoming one, and in criminal procedure the overthrow of the defendant by the establishment of his guilt according to some known legal mode. These modes are, (1) by the plea of guilty, and (2) by the verdict of a jury.

Speaking of the difference between conviction and attaint, Lord Coke says: "The difference between a man attainted and convicted is that a man is said convict before he hath judgment; as if a man be convict by confession, verdict, or recreancy." To the same effect is the definition in Blount's Law Dic. anno 1670, verbum, "convict."

Blackstone (4 Black. 362) says: "If the jury find him [the defendant] guilty, he is then said to be convicted of the crime whereof he stands indicted, which conviction may accrue two ways: either by his confessing the offence and pleading guilty, or by his being found so by the verdict of his country." Again he says: "After trial and conviction the judgment of the court usually follows." Id. 364. "We are now to consider the next stage of criminal prosecution after trial and conviction are past, which is that of judgment," (Id. 375;) and "the plea of autrefois convict, or a former conviction for the same identical crime, though no judgment was ever given, or perhaps will be, is a good plea in bar to an indictment." Id. 336.

Bishop, Statutory Crimes, § 348, says: "The word conviction ordinarily signifies the finding of the jury, by verdict, that the prisoner is guilty. When it is said there has been a conviction, or one is convict, the meaning usually is not

that sentence has been pronounced, but only that the verdict has been returned. So a plea of guilty by the defendant constitutes a conviction of him."

Mr. Justice Story, in U. S. v. Gibert, 2 Sum. 40, while considering the maxim, "No man is to be brought into jeopardy of his life more than once for the same offence," said: "Conviction does not mean the judgment passed upon the verdict;" and in the same case held that a plea of autrefois convicta former conviction-will be sustained by a confession or verdict, even when there has been no judgment; citing 2 Hawk. P. C. c. 36, §§ 1, 10.

In People v. Goldestin, 32 Cal. 432, it was held that a plea of guilty upon which no judgment was given was nevertheless a conviction, and would therefore sustain a plea of former conviction to an indictment for the same offence. And the very statute under which the defendant was indicted uses the term in the same sense. It provides that any person, "upon conviction" of the crime therein defined, shall be punished as the court, within certain limits, may thereafter direct or adjudge by its sentence or judgment.

But, while this is the primary and usual meaning of the term "conviction," it is possible that it may be used in such a connection and under such circumstances as to have a secondary or unusual meaning, which would include the final judgment of the court. Bish. St. Cr. § 348; Whar. Cr. P. & P. § 935. Yet in Stevens v. People, 1 Hill, 261, it was held sufficient, in an indictment for a second larceny, to aliege a prior conviction of the defendant, without averring that there was any judgment or sentence pronounced against him; but the contrary appears to have been held in Smith v. Com. 14 S. & R. 69, cited in Whar. Cr. P. & P. supra.

But there is nothing in the subject or the language of the clause of the constitution under consideration to indicate that the term "conviction" is used therein in any other than the ordinary sense. Of course, it is used there and elsewhere with the understanding that the conviction was not afterwards set aside or annulled by the court. And this is probably the point of the ruling cited from 14 S. & R. supra, that

the indictment, in alleging a prior conviction of the defend. ant, should allege a judgment on the verdict, not as constituting the conviction, but as conclusive evidence that it had not been set aside and was still in force. It follows, then, that the defendant, having pleaded guilty to an indictment charging him with an assault with a dangerous weapon, he was thereby convicted of such crime-proven guilty thereof. It only remains to consider whether this crime was punishable by imprisonment in the penitentiary or not. As has been stated, the punishment prescribed by the statute defining the offence is either a fine, imprisonment in the jail or in the penitentiary, in the discretion of the court. For the defendant it is contended that it was not punishable in the penitentiary, simply because it was not actually so punished, and section 764 of the Or. Cr. Code is relied upon as in some way supporting this position. Now, this section is simply declaratory of the preexisting power of the court, and only requires it to determine the punishment applicable to a particular case, when that is left by the statute undetermined between certain limits or kinds. But it does not authorize the court to impose a punishment in any case which the law has not otherwise prescribed for the commission of the offence. Under the Code a crime is punishable-may be punished-by any punishment which the court is authorized to impose. It is punished by the punishment actually imposed, but it is punishable by any punishment that the law authorizes the court to impose. The phrase "is punishable" cannot be construed to mean more or less than "may be punished," or "liable to be punished."

In People v. Van Steenberg, 1 Park. C. R. 39, it was held that a crime which, in the discretion of the court, might be punished by a fine or imprisonment in the jail or penitentiary, was a felony within the statute definition thereof, towit, "an offence for which the offender, on conviction, shall be liable by law to be punished by death or imprisonment in the state prison."

In People v. Park, 41 N. Y. 21, it was held that a person sentenced upon a conviction of a burglary, punishable gener

ally by imprisonment in the penitentiary, was sentenced upon a conviction for felony within the meaning of the above definition, although, being under 16 years of age, he was, in pursuance of a special statute, sentenced to a house of refuge for juvenile delinquents instead of the penitentiary, and therefore that he was within the purview of the statute prohibiting persons from testifying as witnesses who had been "sentenced upon a conviction for felony." To the same effect is Andrew v. Dieterich, 14 Wend. 34; Peabody v. Fenton, 3 Barb. Ch. 462; Fassett v. Smith, 23 N. Y. 255.

Indeed, the proposition that a crime which may be punished by imprisonment in the penitentiary—a crime which is liable to such punishment-is made punishable thereby, is so self-evident that it hardly admits of argument.

The conviction of the defendant of an assault with a dangerous weapon was had by and upon his plea of guilty to the indictment charging him therewith, Thenceforth he stood. convicted of a crime punishable by imprisonment in the penitentiary, and the liability to such punishment and not the punishment actually inflicted is the circumstance which controls the effect of the conviction in this respect. And the subsequent action of the court in giving judgment upon such conviction could not change the nature or effect thereof.

By virtue of section 3 of art. 2 of the constitution, as a consequence of this conviction, the defendant then and thereby forfeited the privilege of an elector, and thereafter had no lawful right to vote at any election in Oregon.

And even if it were conceded that the term "conviction" is used in the constitution in the sense of or so as to include the sentence of the court, still the conclusion would be the same. It would nevertheless be true that the defendant was convicted of and sentenced for a crime which was then punishable by law by imprisonment in the penitentiary. The fact that he was otherwise punished for it is entirely immaterial, because the forfeiture of his privilege as an elector did not depend upon the kind or measure of punishment actually inflicted, but the kind that might have been-the kind that v.6,no.2-11

the defendant was liable to, and the court was authorized to impose.

So much for the legal aspect of the case. A word as to the moral one.

Throughout the argument for the defendant the court has been pressed with the suggestion and assumption that this prosecution is in some way an injustice to him, and that it is a great hardship for an elector to forfeit his privilege for the conviction of a crime which was only punished by the imposition of a comparatively small fine. In answer to the suggestion of injustice, it is sufficient to say that the prosecution is lawful. It is conducted by the attorney of the United States, upon the authority of a grand jury of more than 16 electors and tax payers, impartially selected and drawn from the body of the district, for the alleged violation of one of its most important laws the law to preserve the purity and integrity of the election of representatives in congress. Neither is there any hardship in the case that can enter into the present consideration of it.

For reasons of public policy, the constitution of the state conferred the privilege of an elector on the defendant, during good behavior, and for like reasons declared it forfeitedwithdrawn-upon his conviction of a crime of such character as presumptively proved him no longer fit for its exercise. Nor is this presumption affected by the fact that the court before which the defendant was tried saw proper, in the exercise of that discretion confided to it, to impose a comparatively slight punishment upon him. Under the constitution the conviction of a crime, for which the offender is liable to imprisoment in the penitentiary, works a forfeiture of the privilege of an elector, irrespective of the kind or measure of punishment which the judge, under the circumstances,-personal, social, political, or otherwise,-may see proper to impose as a punishment for it.

The law gave and the law had taken away-subject, it may be, to the operation of a pardon expressly restoring the priv ilege, and granted in pursuance of an act of the legislature authorizing it.