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. Ho appeal would lie. Ho 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).
*99Article 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) Spenoeb, 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 whicli Mrs. Whipple, the prisoner at the bar, stood charged as an accessory before the fact. The district attorney *100moved that he should be brought up and examined as a witness on the part of the prosecution. Duee, 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, how-
ever, 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 á copy both of the judgment and the conviction. In these positions the other most approved modern elementary writers, Phillips and Starkiej 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, 77§; 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 Iii 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*101victed 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 Gonviction, 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 *102against her, and dissolved the marriage between her and the husband. * * * Doubtless the word conviction ordinarily signifies the finding of the jury by a verdict that the accused is guilty. Yet the word sometimes denotes the final judgment of the court. * * * Thus the case of a witness rendered incompetent to testify, by conviction for an infamous crime, has an analogy. The language of the law is that he is rendered incompetent by his conviction of treason, felony or crimen falsi ¡ but to shut him from the witness box, his conviction must be shown by a judgment. (The People v. Herrick, 13 J. R. 82; The People v. Whipple, 9 Cow. 707. See, also, 10 Sm. & M., supra; * 1 Den. Or. Cas., supra,† where Pollock, B., says : ‘A verdict of a jury in a civil cause is not evidence without judgment.’) ”
In Blaufus v. People (69 N. Y. 107) the question was as to the competency of a witness who had been indicted for perjuty; the jury had found him guilty and he was then in custody awaiting sentence upon that verdict.. Folgeb, J., said: “We have lately in civil cases been called upon to construe statutes of similar import. We have held in them that there wras no conviction merely upon the finding of the question of fact, and that there must also be a judgment of the court. These cases arose under the acts relating to dower and the forfeiture of it by adultery. * * * We do not think that it is different under the criminal statutes involved in this case. * * * In Lee v. Gansel (Cowp. 3) Ld. Manseield lays it down that 1 a conviction upon a charge of perjury is not sufficient unless followed by a judgment. I know of no case,’ he says, ‘ where a conviction alone has been an objection : because upon a motion in arrest of judgment it may have been, or may be quashed.’ * * * A kindred rule is, that a plea of autre fois convict can be proven only by the record ; and the indictment, with the finding of the jury, etc., indorsed by the proper officer is not sufficient, although it appear that no record has been made up (Rex v. Bowman, 6 Car. & P. 99 ‡).*** The People v. Herrick (13 J. R.§ 82) is always considered an authority to this point. The People v. Whipple (9 Cowen, 707) is express.”
*103In People v. McGloin (91 N. Y. 241) Rtjgeb, Ch. J., said: “It is claimed that Banfield was rendered incompetent to testify as a witness in the case, by virtue of the provisions of the Revised Statutes (vol. 3 [Banks’ 6th ed.], 994, § 43, tit. 7), the essential portions of which read as follows: ‘Fío person sentenced upon a conviction for felony shall be competent to testify in any cause, matter or proceeding, civil or criminal, unless he be pardoned by the Governor or by the Legislature, except in the cases specially provided by law.’ It is claimed that section 832 of the Code of Civil Procedure which was in force at the time of the commission of this crime, and which reads as follows: ‘ A person who has been convicted of a crime or misdemeanor, is notwithstanding a competent witness in a civil or criminal action, or special proceeding, but the conviction may be proved for the purpose of affecting the weight of his testimony, either by the record or by his cross-examination, upon which he must answer any question relevant to that inquiry, and the party cross-examining him is not concluded by his answer to such a question,’ does not restore the competency of the witness, because the disqualification imposed by the foregoing section of the Revised Statutes follows only upon a 6 sentence based upon a conviction for a felony,’ whereas, the subsequent enabling statute, embodied in section 832 of the Code of Civil Procedure, relieves only those who have been disqualified by a conviction of a crime or misdemeanor, leaving, as it is claimed, those who have been tried, convicted and sentenced, still subject to the exclusion pronounced by the Revised Statutes. It is hardly conceivable that this construction can be seriously urged. Both at common law and by statute a witness becomes disqualified, only after sentence rendered upon a conviction for felony. (People v. Whipple, 9 Cow. 707; People v. Herrick, 13 Johns. 82:) When it is considered that a mere conviction, not followed by a sentence, never worked a disability,^ will be seen that the construction contended for by the plaintiff in error would deprive section 832 of the Code of Civil Procedure, as well as section 714 of the Penal Code, of any meaning or effect whatsoever. * * * The language used in section 832 to describe the object intended to be accomplished is that which has obtained invariable usage, not only in the reports, but with text writers, and is there used according tq the signification given to it by *104legal writers. It was, therefore, an accurate legal description of such a disqualification to say that it is produced by a conviction of a felony. It is the depravity of nature evidenced by the conviction that creates the disability, and is the only cause of that disability. ‘ It is the infamy of the crime and not the nature of the punishment which destroys competency.’ (1 Wharton’s Criminal' Law, § 160.*) While the terms ‘ disqualified by a sentence for crime,’ or similar words, are never found in the text books or reports, the language used in sectionr832 is invariably employed to describe the disability referred to. (Jackson v. Osborn, 2 Wend. 555; 13 Johns. 82, supra †; Hilts v. Colvin, 14 id. 182.) The disqualification, though entirely based upon the conviction, yet, in order to preclude1 the possibility that the conviction may have been nullified by a motion in arrest or other proceeding, is by the Revised Statutes required to be followed by a sentence in order to become effectual. There is not one disqualification produced by a conviction, and another by a sentence, but both conviction and sentence together produce one. and the same disqualification. The removal of the cause of disqualification necessarily restores the competency of the witness, without reference to the fact as to whether he was sentenced or not. , It was evidently the intention of the Legislature to remove the disqualification in question, and it is our duty in construing this statute to give effect to that intention. From the irreconcilable repugnancy which exists between these acts, the inference inevitably follows that the provisions of the Revised Statutes were intended to be repealed by the enactment of the Code of Civil Procedure.” (See, also, People v. Sullivan, 34 App. Div. 544.) r
In People ex, rel. Forsyth v. Court of Sessions (141 N. Y. 294) it was said : “ The suspension of the sentence simply postpones the judgment of the court temporarily or indefinitely, but the conviction and liability following it and all civil disabilities remain and become operative when judgment is rendered.”
From the foregoing authorities and many in other jurisdictions which it does not seem necessary to cite, it seems to me that it is a fair conclusion that where disabilities, disqualifications and forfeitures are to follow upon a conviction, that in the eye of the law it is *105that conviction which is evidenced by sentence and judgment, and that where sentence is suspended and so the direct consequences of fine and imprisonment are suspended or postponed temporarily or indefinitely, so also the indirect consequences are likewise postponed.
It seems to me that where the word “ conviction ” is construed to mean “ verdict ” — and it is so construed at times —that construction has been in the interest of the defendant, but when that interest requires the word to mean sentence or judgment, that construction has,been adopted. For these reasons I conclude that the judgment appealed from sustaining the demurrer to the indictment should be affirmed.
Houghton, J., concurred.
Judgment reversed and demurrer overruled and case remitted to the Court of General Sessions, to be proceeded with according to law.
See Chitty on Criminal Law,.601.-—[Rep.
Lee v. Gansel, at p. 8.—-[Rep.
Sutton v. Bishop, at p. 2286.— [Rep.
Rex v. Inhabitants of Castell Careinion.— [Rep.
ǁ Rex v. Teal.— [Ref.
Kreithler v. State of Mississippi, (18 Miss. [10 Sm. & M.] 193). — [Rep.
See Reg. v. Hinks, p. 84.— [Rep.
See page 101.— [Rep.
Johnson’s Reports.—[Rep, '
See 5th ed.— [Rep.
People v. Herrick.— [Rep.