People v. Gray

McFARLAND, J.

The defendant was indicted for and convicted of the crime of seduction under promise of marriage ; and the judgment of the court below was, that he should be punished by a fine, and in default of payment thereof by imprisonment in the county jail at the rate of two dollars per day, etc. He appeals from the judgment and from an order denying a motion for a new trial.

In our opinion the contention of appellant that the offense of which he was convicted was barred by section 801 of the Penal Code must be sustained; and, therefore, it was not necessary to consider the many other points which he makes for a reversal, some of which at least raise grave questions.

The offense with which appellant was charged (Pen. Code, see. 268) is punishable either by imprisonment in the state prison or by a fine. It may therefore be either a felony or a misdemeanor; and whether it is to be considered the one or the other depends upon the character of the judgment rendered by the trial court. If the judgment be imprisonment in the state prison, the crime is a felony,—if a fine only or imprisonment in the county jail, a misdemeanor. It is provided in section 17 of the Penal Code that in such a ease if the judgment imposes a punishment less than imprisonment in the state prison the offense ‘ ‘shall be deemed a misdemeanor

for all purposes.”

And that in such a ease the offense shall be deemed to be a misdemeanor has been expressly held by this court in a number of cases.

(People

v.

Cornell,

16 Cal. 187;

People

v.

Sadorse,

62 Cal. 142;

People

v.

Ayhens,

85 Cal. 88;

People

v.

Perini,

94 Cal. 573.) In the ease last cited the defendant was prosecuted for receiving stolen goods, which offense i& punishable by imprisonment either in the state prison or in the county jail, and the court said: “Whether a person convicted of this offense has committed a felony or a misdemeanor can be ascertained by the nature of the judgment. If the defendant is sentenced to serve a term in the state prison, the crime is a felony; otherwise, a misdemeanor. (Pen. Code, secs. 16, 17).” Therefore, as in the case at bar the judgment was less than imprisonment in the state prison, the offense was