App. Div.] First Department, May, 1908. ing, which is the finding of a person guilty of an offense with which he has been charged, either by the verdict of a jury or on his own confession. (4 Black. Com. 362.) Bishop on Statutory Crimes (348) says: "The word 'conviction' ordinarily signifies the finding of the jury, by verdict, that the prisoner is guilty. When it is said there has been a conviction, or one is convict, the meaning usually is not that sentence has been pronounced, but only that the verdict has been returned. So a plea of guilty by the defendant constitutes a conviction of him." The finding of the jury is the establishment of guilt in due course of law. The suspension of sentence in no way disturbs that finding, but merely postpones the imposition of punishment. The question arising under the Election Law is not one affecting the general civil status or rights before sentence is passed of a person found by a jury to have been guilty of crime, and so the cases in which it has been held that a person found guilty by the verdict of a jury but not sentenced is still qualified to be a witness, do not apply to the present case. The condition of adjudged infamy following a conviction of crime was not indelibly stamped upon a person until sentence had been passed upon him pursuant to the verdict. It was the general condition of infamy which disqualified a person from being a witness. Here, however, is a special statute relating to a particular subject, namely, the disqualification of voters and designed to preserve the purity of election; and as to that particular subject the statute has prohibited one convicted of crime from exercising the right of suffrage. The imposition of a penalty is to render the purpose of the legislation effective. The consideration of the statutes and the commentary upon them made by Mr. Justice INGRAHAM in his opinion, to my mind, lead to the necessary conclusion that in the provision of the last statute cited by him the Legislature, in the use of the word "conviction," intended that that word should have its primary and ordinary meaning, namely, an establishment of guilt either by confession or the verdict of a jury. INGRAHAM and LAUGHLIN, JJ., concurred. APP. DIV.-VOL. CXXVI. 7 First Department, May, 1908. [Vol. 126. CLARKE, J. (dissenting): I dissent. It is true that the word "conviction " in popular parlance, and indeed in Code and statutory provisions, often means the verdict of a jury finding the defendant guilty of that whereof he is charged. It is usually applied in criminal proceedings, but is sometimes made use of in civil, as hereinafter pointed out. But I have reached the conclusion that the weight of authority sustains the proposition that where pains, penalties, fines, forfeitures and disqualifications follow upon conviction, then "conviction" means the sentence or judgment of the court entered upon the finding of the jury and proved by the record. If that is not so the position of the defendant is this: He stands indicted for a felony for having voted at a general election in 1907, not then being qualified to vote because on the 21st of February, 1905, a jury had rendered a verdict finding him guilty of the crime of burglary in the third degree. Sentence upon that verdict was suspended, it must be assumed, for good reason, something of weight in defendant's favor. He had no way in which he could review the trial. No appeal would lie. No judgment was entered from which he could appeal. (Code Crim. Proc. § 517; People v. Markham, 114 App. Div. 387.) In my opinion it is extremely doubtful whether he could be pardoned. Article 4, section 5, of the Constitution provides that "The Governor shall have the power to grant reprieves, commutations and pardons after conviction, for all offenses except treason and cases of impeachment. * * * He shall annually communicate to the Legislature each case of reprieve, commutation or pardon granted, stating the name of the convict, the crime of which he was convicted, the sentence and its date, and the date of the commutation, pardon or reprieve." This constitutional provision seems to me to mean that a pardon may only be granted after sentence upon a verdict of guilty, that is, a conviction in legal parlance. So, upon an unfinished legal proceeding which cannot be reviewed upon appeal, nor the claimed consequences relieved from by executive clemency, a disability, a disqualification, is imposed for life. "It is true that the privilege of suffrage is conferred, and the right to exercise it is guaranteed by the Constitution," said FOLGER, J., in People ex rel. Furman v. Clute (50 N. Y. 451). App. Div.] First Department, May, 1908. Article 1, section 1, of the Constitution provides that "No member of this State shall be disfranchised, or deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land, or the judgment of his peers." Article 2, section 2, "Persons excluded from the right of suffrage," first provides that no person who shall promise or receive any money, etc., as compensation for giving or withholding a vote at an election or who shall make a bet upon the result thereof "shall vote at such election," and provides for a challenge for such cause and for the exaction of an oath by the elector that he has not done the things prohibited. It then provides: "The Legislature shall enact laws excluding from the right of suffrage all persons convicted of bribery or of any infamous crime." In the Constitution of 1821 the language was: "Laws may be passed excluding from the right of suffrage persons who have been or may be convicted of infamous crimes." In the Constitution of 1846 the language was: "Laws may be passed excluding from the right of suffrage all persons who have been or may be convicted of bribery, of larceny or of any infamous crime." This provision was amended in 1874 so as to provide as follows: "The Legislature at the session thereof next after the adoption of this section shall and from time to time thereafter may enact laws excluding from the right of suffrage all persons convicted of bribery or of any infamous crime." As the phrase "convicted of any infamous crime" appeared in all of these constitutions and so is to be taken as a mere continuance of the provision and not as a new enactment in the present Constitution, we are to inquire what was the meaning of the words when put into the Constitution in 1821. The meaning of said word under the common law, then in force, arose upon questions involving the competency of witnesses. In 1816 (People v. Herrick, 13 Johns. 83) SPENCER, J., said: "It is laid down as an axiom by almost all the writers on evidence, that the party who would take advantage of the exception that a witness has been convicted of the crimen falsi must have a copy of the record of conviction ready to produce in court." In People v. Whipple (9 Cow. 707), in 1827, one Strang had just been convicted by a verdict of a jury as a principal in the murder of which Mrs. Whipple, the prisoner at the bar, stood charged as an accessory before the fact. The district attorney First Department, May, 1908. * * [Vol. 126. moved that he should be brought up and examined as a witness on the part of the prosecution. DUER, J., said: "The objections urged against the motion are, 1st, that Strang having been convicted of an infamous crime is an incompetent witness. * The disability of Strang to give testimony is urged, in the first place, on the ground of the legal infamy resulting from his conviction. This infamy was formerly held to arise from two sources, a conviction of certain offenses, and the infliction of certain penalties. The mere conviction, properly evidenced, of some crimes was always sufficient, as it is at present, to render the offender infamous; whilst some penalties of a personally degrading character had also the same effect, whatever the crimes might be for which they were inflicted. But it is now settled, on better principles, that it is the crime, and not the punishment, which creates the infamy and destroys the competency of the witness. In order, however, to urge the disability with effect, it is necessary to prove the record of the judgment as well as of the conviction. The sentence, says Chitty,* must be produced as well as the conviction, lest any objection should have defeated it on arrest of this judgment. And the admission of the witness himself will not suffice, without a copy both of the judgment and the conviction. In these positions the other most approved modern elementary writers, Phillips and Starkie, concur with Chitty, and they are abundantly supported by the authorities to which they severally refer. (1 Phil. Ev. 26; 2 Starkie, 716; 1 Cowp. 8†; 4 Bur. 2283+; 8 East, 778; 11 East, 309.) So that Strang's competency as a witness is not affected by his conviction merely; neither will it be destroyed unless that conviction be followed up by judgment." * * * The word "conviction" has been used in the statutes of this State in reference to civil actions In 2 Revised Statutes, 146, section 49, "Marriage after divorce for adultery," the language is, "but no defendant convicted of adultery shall marry again until the death of the complainant." 2 Revised Statutes, 146, section 48, provides that "A wife being a defendant in a suit for a divorce brought by her husband, and con *See Chitty on Criminal Law, 601.— [REP. Sutton v. Bishop, at p. 2286.- [REP. § Rex v. Inhabitants of Castell Careinion.— [REP. Lee v. Gansel, at p. 3.- [REP. Rex v. Teal.- [REP. App. Div.] First Department, May, 1908. victed of adultery, shall not be entitled to dower in her husband's real estate, or any part thereof * * *" Pitts v. Pitts (52 N. Y. 593) was an action for partition. One Rachel Ann Pitts demanded her inchoate dower. The husband resisted upon the ground that he had commenced an action for absolute divorce against his wife, which had been referred to a referee, and the referee had found that the wife had been guilty of an act of adultery. But the referee also found that the husband had condoned the offense, and with full knowledge cohabited with defendant, and directed a dismissal of the complaint. ALLEN, J., said: "A wife can only be barred of dower by a conviction of adultery in an action for a divorce, and by the judgment of the court in such action. (2 R. S. 146, § 48; 1 id. p. 741, § 8.) The loss of dower is a part of the penalty for the offense and follows the judgment. A forfeiture of dower cannot be established by proof of adultery, or by a verdict or judgment in any other action. The proof or admission upon the record of adultery in an action to recover dower, will not defeat the action under the statutes of this State." Schiffer v. Pruden (64 N. Y. 47) was an action for specific performance of a contract for the purchase of real estate. Title was rejected upon the ground that plaintiff's immediate grantor had a wife living who had not joined in the conveyance. In answer plaintiff insisted that in an action for absolute divorce it had been found that she had committed adultery. It further appeared, however, that in the same action the referee had found that the husband had also committed adultery and, hence, the complaint had been dismissed. FOLGER, J., after alluding to the provisions of the Revised Statutes, said: "He contends that the finding of fact of the referee above mentioned, is a conviction of her of adultery, and that she is thereby barred of or has lost her right to be endowed in these lands. He has argued as though any conviction in any action, that is (as he interprets the word conviction), any finding of fact or any verdict that a wife has been guilty of adultery, will take from her her title to dower. * * We cannot agree that the word * conviction, in the place in which it is found, means only the establishing her adultery as a fact by proof. We think that it is charged with the fuller meaning that, upon the proof and finding or verdict of her adultery, the court has given judgment of divorce |