[$ 10 offenses which are not specifically classified as felonies or misdemeanors by the statute defining them, and do not prevent the legislature from classifying an offense as a misdemeanor in the statute creating it and at the same time providing that it shall or may be punished by A. (N. S.) 493, Ann. Cas. 1916 E. 417; State v. York, 131 Iowa 635, 109 N. W. 122; State v. Shea, 106 Iowa 735, 72 N. W. 300; State v. Conlee, 25 Iowa 237. Kansas. In re Stevens, 52 Kan. 56, 34 Pac. 459. Kentucky. Buford v. Com., 14 B. Mon. 24; Tharp v. Com., 3 Metc. 411; Payne v. Com., 110 S. W. 311. Maine. State v. Smith, 32 Me. 369, 54 Am. Dec. 578. Massachusetts. Com. v. Rosenthal, 211 Mass. 50, 97 N. E. 609, 47 L. R. A. (N. S.) 955, Ann. Cas. 1913 A 1003; Com. v. New York Cent. & H. River R. Co., 206 Mass. 417, 92 N. E. 766, 19 Ann. Cas. 529; Com. v. Sherman, 191 Mass. 439, 78 N. E. 98; Com. v. Smith, 11 Allen 243; Ex parte Brown, 151 Fed. 710. Minnesota. State v. Hogard, 12 Minn. 293. Missouri. State v. Foster, 187 Mo. 590, 86 S. W. 245; State v. Clayton, 100 Mo. 516, 13 S. W. 819, 18 Am. St. Rep. 565; State v. Ostman, 147 Mo. App. 422, 126 S. W. 961; State v. Wilson, 140 Mo. App. 726, 126 S. W. 996; State v. Johnson, 138 Mo. App. 306, 121 S. W. 780. New Mexico. Ex parte De Vore, 18 N. M. 246, 136 Pac. 47; United States V. Vigil, 7 N. M. 296, 34 Pac. 530. New York. People v. Craig, 195 N. Y. 190, 88 N. E. 38, rev'g 129 App. Div. 851, 114 N. Y. Supp. 833, which aff'd 60 Misc. 529, 112 N. Y. Supp. 781; People V. Lyon, 99 N. Y. 210, 1 N. E. 673; People v. Brown, 193 App. Div. 203, 184 N. Y. Supp. 165; Mairs v. Baltimore & O. R. Co., 73 App. Div. 265, 76 N. Y. Supp. 838, aff'd 175 N. Y. 409, 67 N. E. 901; People v. Hayman, 94 Misc. 624, 159 N. Y. Supp. 981; People v. Borges, 6 Abb. Pr. 132. North Carolina. Jones v. Brinkley, 174 N. C. 23, 93 S. E. 372; State v. Hyman, 164 N. C. 411, 79 S. E. 284; State v. Holder, 153 N. C. 606, 69 S. E. 66; State v. Lytle, 138 N. C. 738, 51 S. E. 66; State v. Mallett, 125 N. C. 718, 34 S. E. 651, aff'd 181 U. S. 589, 45 L. Ed. 1014, 21 Sup. Ct. 730. Ohio. McKehry v. State, 87 Ohio St. 1, 99 N. E. 1076; State v. Hamilton, 3 Ohio Cir. Ct. 10. Oklahoma. Ex parte Martin, 6 Okla. Cr. 224, 118 Pac. 155. Oregon. State v. Swikert, 65 Ore. 286, 132 Pac. 709; Ex parte Biggs, 52 Ore. 433, 97 Pac. 713. Texas. Welsh v. State, 3 Tex. App. 114; Huff v. McMichael, 60 Tex. Civ. App. 379, 127 S. W. 574; WatersPierce Oil Co. v. State, 48 Tex. Civ. App. 162, 106 S. W. 918, aff'd 212 U. S. 86, 53 L. Ed. 416, 29 Sup. Ct. 220. Vermont. State v. Muzzy, 87 Vt. 267, 88 Atl. 895; State v. Clark, 83 Vt. 305, 75 Atl. 534, Ann. Cas. 1912 A. 261; Corbett v. Sullivan, 54 Vt. 619; State v. Scott, 24 Vt. 127. Virginia. Quillin v. Com., 105 Va. 874, 54 S. E. 333, 8 Ann. Cas. 818; Barbour v. Com., 80 Va. 287; Randall v. Com., 24 Gratt. 644. A statute which merely changes the punishment for offenses that were felonies at common law from death to imprisonment in the state prison does not have the effect of reducing the grade of such offenses from felony to misdemeanor. The grade remains the same as at common law. State v. Dewer, 65 N. C. 572. imprisonment in the penitentiary,88 or from so classifying an offense which for any other reason would not come within the general definition of misdemeanors.89 But it has been held that the punishment imposed rather than the name given to an offense is controlling in determining whether it comes within constitutional provisions requiring prosecutions to be by indictment or information and guaranteeing the right of trial by jury except in the case of petty misdemeanors, and that the legislature cannot deprive the accused of the benefit of these provisions by declaring an offense punishable by imprisonment in the state's prison to be a misdemeanor.90 And of course where the classification is found in the constitution the legislature cannot change it.91 Some of the provisions of this character purport to apply only to the term "felony," when used in a statute, and when such is the case it has been held that they merely furnish a definition of the term and a rule for construing it when so used, and do not constitute a general definition or a general test for determining what offenses are felonies.92 However, there is not lacking authority to the con Under such a statute, an offense not punishable by death or by imprisonment in the state prison is not a felony, though it may have been a felony at common law. Nathan v. State, 8 Mo. 631; Shay v. People, 22 N. Y. 317. In Massachusetts, in view of the statute providing for a women's prison, in which women guilty of either felonies or misdemeanors may be confined, in so far as women are concerned, the place where they may be imprisoned is no longer the test, but rather the place in which a man guilty of the same offense would be confined. Ex parte Brown, 151 Fed. 710. 88 State v. Foster, 187 Mo. 590, 86 S. W. 245; People v. Borges, 6 Abb. Pr. (N. Y.) 132; State v. Holder, 153 N. C. 606, 69 S. E. 66. 89 State v. Kruger, 280 Mo. 293, 217 S. W. 310. 90 State v. Newell, 172 N. C. 933, 90 S. E. 594; State v. Hyman, 164 N. C. 411, 79 S. E. 284; State v. Lytle, 138 N. C. 738, 51 S. E. 66; see also State v. Holder, 153 N. C. 606, 69 S. E. 66. 91 People v. Godding, 55 Colo. 579, 136 Pac. 1011. 92 People v. Lyon, 1 N. Y. Cr. 400, aff'd 33 Hun 623, 2 N. Y. Cr. 484; Nichols v. State, 35 Wis. 308; Wilson v. State, 1 Wis. 184. In Michigan the statute declares that "the term 'felony,' when used in this title, or in any other statute, shall be construed to mean an offense for which the offender, on conviction, shall be liable by law to be punished by death or by imprisonment in the state prison." It is held that this is only a legislative definition of the term, as used in those provisions of the statute where neither the particular offense, nor its grade, is otherwise indicated than by the use of this term; and that those acts which were felonies at common law remain such, notwithstanding the statute, though by statute they may be subjected to a less punishment trary.93 Under such statutes it is generally held that the maximum punishment which may be imposed determines whether an offense is a felony, and not the punishment that is actually imposed in a particular case.94 But there is authority to the effect than that mentioned. People v. Wilson, 55 Mich. 506, 21 N. W. 905; Drennan v. People, 10 Mich. 169. Compare Firestone v. Rice, 71 Mich. 377, 38 N. W. 885, 15 Am. St. Rep. 266, where it is held that wherever a statute punishes an offense by imprisonment in the state prison, unless it is expressly declared by statute to be a misdemeanor, such offense must be treated and considered as a felony, as regards the right of an officer to arrest without process. 93 In Colorado it is held that such a provision in the constitution is a definition of the term "felony,'' and furnishes a test for determining what offenses are felonies generally. People v. Godding, 55 Colo. 579, 136 Pac. 1011. 94 Alabama. Clifton v. State, 73 Ala. 473; Turner v. State, 40 Ala. 21. Arkansas. State v. Waller, 43 Ark. 381. Colorado. People v. Godding, 55 Colo. 579, 136 Pac. 1011. Kansas. In re Stevens, 52 Kan. 56, 34 Pac. 459. Maine. State v. Mayberry, 48 Me. 218; State v. Smith, 32 Me. 369, 54 Am. Dec. 578. Michigan. Firestone v. Rice, 71 Mich. 377, 38 N. W. 885, 15 Am. St. Rep. 266; People v. Brigham, 2 Mich. 550. Missouri. State v. Foster, 187 Mo. 590, 86 S. W. 245; State v. Melton, 117 Mo. 618, 23 S. W. 889; State v. Clayton, 100 Mo. 516, 13 S. W. 819, 18 Am. St. Rep. 565; State v. Reeves, 97 Mo. 668; State v. Green, 66 Mo. 631; Ingram v. State, 7 Mo. 293; Johnston v. State, 7 Mo. 183; State v. Ostman, 147 Mo. App. 422, 126 S. W. 961; State v. Wilson, 140 Mo. App. 726, 126 S. W. 996; State v. Johnson, 138 Mo. App. 306, 121 S. W. 780. New York. People v. Hughes, 137 N. Y. 29, 32 N. E. 1105; People v. Lyon, 99 N. Y. 210, 1 N. E. 673; Mairs v. Baltimore & O. R. Co., 73 App. Div. 265, 76 N. Y. Supp. 838, aff'd 175 N. Y. 409, 67 N. E. 901; People v. Hayman, 94 Misc. 624, 159 N. Y. Supp. 981; People v. Borges, 6 Abb. Pr. 132; People v. Van Steenburgh, 1 Park Cr. 39. Ohio. McKelvy v. State, 87 Ohio St. 1, 99 N. E. 1076; State v. Hamilton, 3 Ohio Cir. Ct. 10. Tennessee. Rafferty v. State, 91 Tenn. 655, 16 S. W. 728. Texas. Huff v. McMichael, 60 Tex. Civ. App. 379, 127 S. W. 574; WatersPierce Oil Co. v. State, 48 Tex. Civ. App. 162, 106 S. W. 918, aff'd 212 U. S. 86, 53 L. Ed. 416, 29 Sup. Ct. 220; Welsh v. State, 3 Tex. App. 114. Virginia. Quillin v. Com., 105 Va. 874, 54 S. E. 333, 8 Ann. Cas. 818; Benton v. Com., 89 Va. 570, 16 S. E. 725; State v. Harr, 38 W. Va. 58, 17 S. E. 794. The constitutional provision does not necessarily require that every one convicted of a felony be sent to the penitentiary, and a statute authorizing a suspension of sentence is not in conflict with it. Martin v. People, Colo., 168 Pac. 1171. The statutory definition of felony must be construed as relating to the punishment prescribed for the crime, without regard to any personal exemption of the criminal. Therefore one who is convicted and sentenced for an offense punishable by imprisonment in the state prison is convicted that the minimum punishment is the test,95 and in some states the punishment actually imposed governs.96 and sentenced for a felony, though by statute, because of his youth, he is sent, not to state prison, but to the house of refuge. People v. Park, 41 N. Y. 21. 95 In Illinois the statute declares to be felonies all offenses "punishable'' by death or imprisonment in the state prison, and it is held that this means that the offense "must" be so punished, and that an offense which may be punished either by imprisonment in the penitentiary or by imprisonment in the county jail or by a fine only, in the discretion of the jury, is a misdemeanor only. Herman v. People, 131 Ill. 594, 22 N. E. 471, 9 L. R. A. 182; Baits v. People, 123 Ill. 428, 16 N. E. 483; Lamkin v. People, 94 Ill. 501; Beattie V. People, 33 Ill. App. 651. 96 This is true in California under a code provision that when a crime punishable by imprisonment in the state prison is also punishable by fine or imprisonment in a county jail, in the discretion of the court, it shall be deemed a misdemeanor for all purposes after a judgment imposing a punishment other than imprisonment in the state prison. Pen. Code, § 17. Under this provision where the punishment inflicted is less that imprisonment in the state prison, the statute of limitations governing prosecutions for misdemeanors applies, although the indictment charges an offense which may be punished by imprisonment in the state prison. People v. Gray, 137 Cal. 267, 70 Pac. 20; People v. Picetti, 124 Cal. 361, 57 Pac. 156. So, too, the punishment inflicted governs in determining whether the offense is within a statute giving the supreme court juris Apgar, 35 Cal. 389; People V. Cornell, 16 Cal. 187. If the offense is one which may be punishable by imprisonment in the state prison, it must be prosecuted, prior to judgment, with the forms and solemnities of a crime of the grade of a felony, and hence an appeal by the people from a judgment sustaining a demurrer to the indictment in such a case may be taken to the supreme court. People v. War, 20 Cal. 117. In Georgia it is held that rape, or an attempt to commit it, may be either a felony or a misdemeanor as the jury shall recommend. Todd v. State, 25 Ga. App. 411, 103 S. E. 496. If the prisoner is liable to be punished by imprisonment in the penitentiary the offense is prima facie a felony although the court has discretionary power to inflict a lower grade of punishment. Miller v. State, 58 Ga. 200; Chandler v. Johnson, 39 Ga. 85. In Nevada the punishment inflicted governs in applying a constitutional provision giving a right of appeal in all cases in which the offense charged amounts to a felony." State v. Quinn, 16 Nev. 89; State v. McCormick, 14 Nev. 347. In Oregon the statute provides that when a crime punishable by imprisonment in the penitentiary is also punishable by a fine or imprisonment in a county jail, in the discretion of the court, it shall be deemed a misdemeanor for all purposes after a judg ment imposing a punishment other than imprisonment in the penitentiary. State v. Swikert, 65 Ore. 286, 132 Pac. 709. Under this provision such a crime § 11. Misdemeanors. All crimes that are not treason or felony are misdemeanors.97 As we have seen, by statute in most of the states they comprise all crimes not punishable by death or imprisonment in the state prison or penitentiary.98 In New Jersey the distinction between felonies and misdemeanors is not observed by the code, but all statutory crimes are misdemeanors or high misdemeanors according to the degree of punishment imposed.99 § 12.- High crimes and misdemeanors. High crimes and misdemeanors have been defined to be, "such immoral and unlawful acts as are nearly allied and equal in guilt to felony, yet owing to some technical circumstance, do not fall within the definition of felony." is deemed to be a felony until and unless the penalty actually imposed is less than imprisonment in the penitentiary, but if the penalty actually imposed is other than such imprisonment, the crime is deemed a misdemeanor after the judgment prescribing the penalty. When, therefore, life is taken to prevent an offense which, if committed, may be punished by imprisonment in the penitentiary, it is taken to prevent the commission of a felony, even though for such offense there is a lesser alternative penalty. State v. Rader, 94 Ore. 432, 186 Pac. 79. 97 Connecticut. Fimara v. Garner, 86 Conn. 434, 85 Atl. 670. Florida. Stinson v. State, 63 Fla. 42, 58 So. 722. Illinois. Walsh v. People, 65 Ill. 58, 16 Am. Rep. 569; People v. Sweetland, 210 Ill. App. 432. Kentucky. Nider v. Com., 140 Ky. 684, 131 S. W. 1024, Ann. Cas. 1913 E 1246. Oregon. Ex parte Biggs, 52 Ore. 433, 97 Pac. 713. Vermont. Corbett V. Sullivan, 54 Vt. 619; State v. Scott, 24 Vt. 127. All acts which were not felonies at common law, which have been made offenses by statute, and which 1 are not per se wrong, are misdemeanors, unless specifically denominated felonies in the respective laws creating them. United States v. Vigil, 7 N. M. 296, 34 Pac. 530. In the legal acceptation of the term at common law, it generally means nothing more than trespass; in order to become the subject of indictment it may be described to be "such exclusive trespass against good morals or public peace as tends to injure the public, either directly or consequentially, but which does not amount to any higher degree of characterized crime." Com. v. Flaherty, 25 Pa. Super. Ct. 490. The common-law distinction between high and low misdemeanors does not apply in California, although those over which the code gives jurisdiction to justices' courts and police courts are commonly called low misdemeanors, while all others are called high misdemeanors. In re Westenberg, 167 Cal. 309, 139 Pac. 674. 98 See § 10, supra. 99 See § 7, supra. 11 Russell on Crimes 61. Ross v. Crofutt, 84 Conn. 370, 80 Atl. 90, Ann. Cas. 1912 C 1295; State V. Knapp, 6 Conn. 415, 16 Am. Dec. 68. "High crimes and misdemeanors |