State v. Swikert
132 P. 709
Or.
1913
Check Treatment

Opinion

Per Curiam.

1. Defendant was charged with the crime of larceny of sheep, pleaded not guilty, and upon the trial was convicted. The court gave judgment against him thereon that he be confined in the penitentiary without limitation, and that he pay a fine of $50. He was thereupon paroled by the court from the effects of the sentence to the penitentiary, conditioned upon payment of the fine, which he immediately paid. Defendant appeals.

The cause was presented by defendant, by his brief as well as argument, upon many alleged errors oc*288curring at the trial; but, as there is no bill of éxceptions contained in the record, we cannot review such" alleged errors.

2-4. The state moved to dismiss the appeal for the reason that the judgment appealed from has been satisfied. Although defendant does not assign it as error, in his brief he complains that the judgment is void for the reason that Section 1950, L. O. L., under which defendant was indicted and sentenced, provides for an alternative judgment of imprisonment in the penitentiary, of imprisonment in the county jail, or by a fine, and that the judgment rendered is for an imprisonment in the penitentiary and a fine. By Section 1371, L. O. L., it is provided: “A felony is a crime which is punishable with death, or by imprisonment in the penitentiary of this state. , When a crime punishable by imprisonment in the penitentiary is also punishable by a 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 penitentiary.” Thus, although he has been released upon payment of the fine, the conviction and judgment against him remains a felony, and the parole may be revoked by the court under certain conditions.

The payment of the fine was payment under duress equivalent to a payment under protest. It was made to avoid being sent to the penitentiary, and was a satisfaction of the judgment only pro tanto, which still stands against him as to the imprisonment; and he has a right to question the legality of the judgment, which was beyond the jurisdiction of the court to render: 12 Cye. 958, and cases cited; State v. Walters, 97 N. C. 489 (2 S. E. 539, 2 Am. St. Rep. 310). And the objection going to the jurisdiction of the court to render the judgment may be first interposed in this court.

*289The judgment is reversed and the cause remanded, with direction to the court to render judgment in accordance with the statute.

Reversed and Remanded.