The opinion of the court was delivered by
Valentine, J.:Such questions in this case as are identical with questions raised and decided in a former case between The Slate and this same defendant, (ante, p. 371,) we shall not again consider. But there is a new question raised in this case, to-wit: After due proof is made that the defendant has sold spirituous, vinous, fermented, and other intoxicating liquors without a license, is proof of a former conviction and judgment for a similar offense, before a justice of the peace, appealed from to the district court, or proof of a former conviction and judgment in the district court, appealed from to the supreme court, (such judgment not being satisfied by payment or otherwise,) sufficient evidence upon which to find the defendant guilty of a second or subsequent offense, as described in section three of the Dramshop Act? (G-en. Stat., 400.)
The State claims, first, that the defendant may become liable to the increased penalty attached to the second offense, by violating the law a second time, although no conviction has yet been had, nor even a prosecution commenced against him for the first offense; and second, that an appeal from the conviction and judgment for the first offense, does not destroy nor suspend the same as evidence
*383The defendant on the other hand claims, first, that he cannot be convicted for a second offense, as such, unless he has first been tried, convicted and sentenced, and the sentence satisfied either by a payment of the fine or by a' pardon, before the second offense is committed; and second, that an appeal from the conviction and judgment for the first offense, entirely destroys the same as evidence.
It appears from the record in this case that the defendant was convicted and sentenced for the first offense on the 8th of June, 1870, in a justice’s court, and from this he appealed to the district court. He committed the second offense June. 10th, 1870. He was tried again for the first offense in the district court, and was convicted and sentenced June 29th, 1870. Afterwards, but on the same day, he appealed to the supreme court; and after the appeal but on the same day he was charged, tried, convicted and sentenced for the second offense; and it is this sentence which he now seeks to have reversed.
i. OEimKAiLaw fenseTeflnect After a careful examination of the questions involved in this case we have come to the following conclusions: Pi'i'st, Before a person can make himself liable to be convicted oí a second offense, as such, he must previously have been connected of the first offense; (The People v. Butler, 3 Cowen, 347, et seq; Jacob’s Law Dic., title “ convict;” 1 Hawkins Pl. Cr., 72, Ch. 7, § 7;) but it is not necessary, as is claimed by the defendant, that such first conviction should be first satisfied by a “ payment of the fine or by a pardon.” In fact, it would seem very absurd that an insolvent person who could not, or any person who would not pay his fine, should be in a better condition, and escape with less punishment, than the person who should pay his fine promptly.
*384' - eiiectoi. Second: The effect of a conviction where the person is sentenced to pay a fine only, may be suspended for all purposes by an appeal until the case shall be finally determined on the appeal. Gen. Stat. p., 882, § 21; p. 866, §§ 286, 287. And for authorities settling an analogous principle, see 1 Greenl. Ev., § 510 ; Phillips Ev., 137; and note 128 of Cowen & Hills Notes, 293. And then, if it appears that the conviction was erroneous or illegal, its effect will be totally destroyed for all purposes; but if it was correct, then it will have the same effect as though no appeal had ever been taken.
The defendant had been convicted of the first offense in the justice’s court before the second offense was committed, and therefore was, and continues to be, liable to the increased penalty attached to the commission of a second offense, provided said conviction shall not finally be found to be erroneous.
3. Ari’KAJ. — Gffüot "r'a Put said conviction had been appealed from, and therefore suspended at the time of the trial in this case. The admission of the same in evidence was erroneons; and for that reason the judgment in this case must be reversed, and the cause remanded for a new trial.
Kingman, O. J., concurring. .Saffoed, J., dissenting.