People v. War
20 Cal. 117
Cal.
1862
Check Treatment
Norton, J. delivez-ed the opinion of the Court—Field, C. J. concurring.

The indictment in this case ÍS’ for the crime of “ an assault with a deadly weapon, with intent to inflict upon the person of another a *119bodily injury, there appearing no considerable provocation therefor.” A demurrer to the indictment was sustained, and the people have appealed.

The indictment is proper in form. The offense could not be stated in any other mode that would better comply with the rules of criminal pleading or the requirements of the Act to regulate proceedings in criminal cases. Section two hundred and thirty-seven of that Act requires the acts constituting the offense to be stated. According to the form given in section two hundred and thirty-eight, it is proper to precede the statement of the acts constituting the offense by a statement of the crime of which the party is indicted, “ giving its legal appellation, such as murder, arson, manslaughter, or the like, as designating it as felony or misdemeanor.” This does not require that it shall be called a felony or a misdemeanor, but it assumes that the legal appellation of the crime will itself show whether it is a felony or a misdemeanor. If the legal appellation of the crime as given in the statute defining the offense does not show whether it is a felony or a misdemeanor, it cannot be made or shown to be one or the other by the pleader calling it a felony or a misdemeanor. In this indictment the legal appellation, that is, the designation of the crime as given in section fifty of the Act concerning Crimes and Punishments, which creates the offense, is properly set forth.

The real objection to tins indictment, if there be any, is that the facts set forth do not constitute a public offense, because the punishment prescribed being either imprisonment in the State prison or a fine, it does not appear whether it is a felony or a misdemeanor, and hence it does not necessarily fall within any class of crimes known to the law. The discretion given as to the punishment certainly does not make the same act two offenses, and it would be a singular consequence if the fixing alternative punishments belonging to different classes of crimes should prevent a criminal act from being indictable as any crime. We think, however, there is no uncertainty as to the grade of the crime charged. “A felony is a public offense, punishable by death or by imprisonment in a State prison. Every other public offense is a misdemeanor.” (Act to regulate proceedings in criminal cases, secs. 4, 5.) Under these *120definitions, any offense which may be or is Hable to be punished by death or imprisonment in the State prison is a felony. Any offense which is not fiable to such punishment—that is, for which that grade of punishment cannot under any circumstances be inflicted— is a misdemeanor. Although the offense charged in this indictment may, in the discretion of the Court in any particular case, be only punished by a fine, yet the offense is one which is punishable, which is liable to be punished, by imprisonment in the State prison, and hence it must be prosecuted with the forms and solemnities of a crime of the grade of a felony.

The case being one of felony, it follows that this Court has jurisdiction of the appeal.

The case of The People v. Cornell (16 Cal. 187) decides that a judgment, in a case like this, which has limited the punishment to a fine, cannot be appealed to this Court as not being a case of felony. But that was upon the ground that a judgment appealed from was a judgment for a misdemeanor, and that the nature and extent of the punishment fixed the right of appeal. The consequences of the judgment from which the appeal was taken were not of that gravity which the Legislature had deemed requisite to authorize an appeal to this Court. In the present case, no judgment has been pronounced which protects the defendant from liability to be punished by imprisonment in the State prison. As the point ruled in that case is not the same as the one presented in this, it is not necessary to decide whether the reasons assigned in the two cases are strictly reconcilable.

Judgment reversed, and the Court below directed to give judgment for the plaintiff on the demurrer, with leave to the defendant to plead to the indictment.