People v. Aubrey

By the Court, Crockett, J.: The defendant was indicted for an assault with a deadly weapon, with the intent to commit murder, and was convicted of an assault with a deadly weapon, and was thereupon sentenced to be confined in the County Jail for one year. From this .judgment the defendant appeals, and the Attorney-General moves to dismiss the appeal, on the ground that from such a judgment there is no appeal.

An appeal will not lie to this Court in a criminal cause, except in cases amounting to felony; and sec. 245 of the Penal Code, as amended in 1874, provides that the punishment for an assault with a deadly weapon shall be “by imprisonment in the State Prison or in a county jail not exceeding two years, or by fine not exceeding five thousand dollars, or by both.” Sec. 17 of the same Code provides that “ a felony is a crime which is punishable with death or by imprisonment in the State Prison. Every other crime is a misdemeanor; or, 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.” (Amendment of 1874.)

The offense of which the defendant was convicted was, therefore, only a misdemeanor, and no appeal lies from the judgment.

Appeal dismissed.

Mr. Justice McKinstry expressed no opinion.