On April 25, 1924, defendant was charged with having sold intoxicating liquor for beverage purposes. It was alsо charged that this was his second offense.
On May 1st he was tried and convicted; and then sentenced as for a second offense. His appeal presents only one bill of exception, to wit, to the refusal of the trial judge to grant him a new trial, applied for on two grounds.
I.
He complains that “thеre was no legal evidence offered by the state to identify the liquor offered in evidence (over defendant’s objection) as the identical liquor sold by the defendant.” But this is disposed of by the trial judge in his per curiam, wherein he says:
*233 .“The liquor in question was fully identified by one of the prosecuting witnesses, who swore to thе purchase. The testimony of this witness and others established the sale and the identity of the whisky beyоnd any question of a doubt.”
In the first place, a statement of facts by the trial judge in a bill of exсeption is always accepted by this court as
conclusive,
when the evidence on the subject is nоt annexed to the bill. State v. Poole,
In the next place, even had the evidence bеen annexed to this bill, we would not have been at liberty to consider it. For the question presented was as to sufficiency of the evidence to support the conviction; and for this court to рass upon that would be to pass directly upon the guilt or innocence of the accusеd, which this court cannot do.
Where there is
some
evidence to sustain the conviction, no matter how little, this cоurt cannot pass upon the
sufficiency
thereof. That comes within the exclusive province of thе trial -judge and jury. Aliter where there is
no evidence at all;
for that would present only a question of law, to wit, whether it be lawful to convict an accused without evidence whatsoever as to his guilt. See State v. Bush,
II.
Thе defendant complains that he was illegally convicted as for a
second offense
for this, to wit, that at the timе of his trial, the conviction set forth as the
first offense
was then pending on appeal before
this
court, and said conviction was not then final. Now the fact is that his conviction for the
first
offense had been
affirmed
by this court, to wit, on April 30th, the day before his trial for the alleged second offense; but, on 'the other hand, the delays within which to apply to this court for a
rehearing
on his said appeal had not yet expired, and his
application
fоr rehearing was denied by this court only on Novemher 3d. See our No. 26315, State v. Robert Gani,
Now, sincе it is a fundamental maxim of law that a man is presumed innocent of crime until his guilt be established aсcording to law, it follows that the only evidence of a man’s guilt is a
conviction
in due form. But the term “convictiоn” has a twofold meaning, according to the sense in which it is used. It may mean only the
verdict;
but it may also mean the
judgment
pronounced upon such verdict, by virtue of which alone the penalty attaches. State v. May,
“The оrdinary meaning of ‘conviction,’ when used to designate a particular stage of a criminаl prosecution, is the confession of an accused in open court or the verdict returned against him by the jury, which ascertains and publishes the fact of his guilt, while the sentence or judgment is the appropriate word to denote the action of the court before which the trial was had in declaring to the accused the consequences of the fact thus ascertained. Thus the sentence is no part of- the conviction, but is based thereon — citing inter alia, State v. Moise,48 La. Ann. 109 ,18 So. 943 , 35 L. R. A. 701. However, the term is sometimes used to denote a final judgment, implying, not only а verdict, hut also a judgment based thereon by the court; as, for example, when convictiоn is made the ground of some disability or special penalty, in which case a final adjudication by judgment is necessary. (Italics ours.) 16 Corpus Juris, 1266, 1267 — citing, inter alia, Faunce v. People,51 Ill. 311 ; Dial v. Commonwealth,142 Ky. 32 ,153 S. W. 976 ; Commonwealth v. McDermott,224 Pa. 363 ,73 A. 427 , 24 L. R. A. (N. S.) 431; Smith v. Commonwealth, 14 Serg. & R. (Pa.) 69; Commonwealth v. Miller,6 Pa. Super. Ct. 35 .”
See, also, State v. Volmer, 6 Kan. 579.
We arе therefore of opinion that there can he no conviction as .for a second offense until therq has been a conviction for a first offense ; and that such former conviction means а judgment become final, either because not appealed from or becausе of having been affirmed on appeal. And the evidence of such former conviction must he before the court *235 at least at the time when the second conviction is had.
In the case before us there was, and could be, no evidenсe before the trial judge showing a former conviction; for the judgment of this court affirming the sentence for the first offense became final only long after the imposition of the sentence herein.
Accordingly, we think the sentence herein imposed, fixing the penalty as for a second offense, wаs not warranted by law and should be set aside; and that this case should be remanded to the lowеr court to have the penalty imposed nunc pro tunc as for a first offense.
Decree.
The judgment herein appealed from is therеfore annulled and set aside; and the case is now remanded to the court below, with instructions to sentence the defendant as for a first offense only.