People v. Adams

Respondent was convicted of selling fermented cider, contrary to tbe provisions of a resolution *542adopted by the board of supervisors of the county of Van Burén in pursuance of the provisions of Act No. 207, Laws of 1889, and contrary to the provisions of said act.

The information is good. The allegation that the sale was contrary to the provisions of a resolution adopted by the board of supervisors pursuant to the provisions of the act is a'sufficient allegation that the act had been made and was operative. It is not .usually necessary in an information, in referring to a statute, to allege that the statute has taken effect, or has become or still is operative, and the reference in the present case is of the same nature.

It is unnecessary to prove the promulgation of the adoption of the preamble and resolution. Section 17 of the act makes a certified transcript of the record of the preamble and resolution evidence that the provisions of the act are in full force.

The jury were properly instructed that, if the cider sold was fermented, the respondent should be convicted. The statute prohibits the sale of fermented cider, and forecloses inquiry as to whether cider which is fermented is intoxicating, whatever the stage of fermentation. The sale was in December, and the proofs tended to show that the cider was fermented.

To prove the former conviction, the judgment was introduced, which showed that, upon a plea of guilty, respondent had been ordered to pay a fine of $100, and costs in the sum of $25, and, in default of payment of said sums, to be confined in the common jail until such fine and costs were paid. It is insisted that the sentence is void, under Brownbridge v. People, 38 Mich. 751, and People v. Carroll, 44 Id. 371. Act No. 207, § 16, provides that, “for the second and every subsequent offense so committed, * * * he shall, upon conviction thereof,” be sentenced, etc. Conceding the invalidity of the sentence, and that under this statute a conviction of the first offense must be shown, *543the former conviction stands unreversed. The conviction is the finding of guilt. 1 Bish. Crim. Law, § 963; Stevens v. People, 1 Hill, 261; State v. Volmer, 6 Kan. 379; Nason v. Staples, 48 Me. 123; Com. v. Lockwood, 109 Mass. 323. As is said by Gray, J., in Com. v. Lockwood,—

“ The ordinary legal meaning of f conviction,.’ when used to designate a particular stage of a criminal prosecution triable by a jury, is the confession of the accused in open ■court, or the verdict returned against him by the jury, which ascertains and publishes the fact of his guilt; while f judgment ’ or f sentence ’ is the appropriate word to ■denote the action of the court before which the trial is had, declaring the consequences to the convict of the fact thus ascertained.”

It is the declaration of consequences, only, that is bad; but there is no reversal, the conviction stands as evidence of the fact, and the statute is satisfied.

The present case is here on appeal from a. judgment of ■conviction. That judgment is affirmed, and the court below is directed to proceed to sentence.