(dissenting). That a judgment is a judgment must be and is freely conceded, but that does not, by any means, solve the question that was here presented.
Under the constitution, art. I, sec. 16, a person may not be imprisoned, as in olden days he could be, upon a judgment for debt arising out of or founded on an express or implied *179contract, yet such a judgment may be identical in form and language with a judgment in a tort action upon which there may be imprisonment, and the record behind each must be searched to determine whether or no imprisonment may follow the one and must not the other. The final decree in equity may be enforced by contempt proceedings and consequent imprisonment, yet it is just as much a judgment as one fixing finally the amount that is to be paid as damages for a breach of contract or for a tort.
I am dissenting because I think that in construing the statute here providing for an increased punishment for second convictions there should be again recognized the substantial, inherent, and natural distinction between a conviction upon the plea of nolo contendere and one following a trial upon the merits after a plea of not guilty, or following a plea of guilty which takes the place of such a trial. The latter is the judgment of conviction obtained in almost all criminal cases where acquittal or discharge is not the final result. It is a fairly safe venture to say that such are the nine hundred and ninety-nine out of a thousand convictions, and that such would be the reaction to the term “conviction” in the mind of one of the laity or of one learned in the law.
The very fact mentioned by the majority opinion supra, that “the plea (nolo contendere) itself contains no admissions which can be used against the defendant in .another action,” shows the substantial distinction between a conviction on that plea and the conviction after trial or plea of guilty. The distinction between the two is pointed out in White v. Creamer, 175 Mass. 567, 568, 56 N. E. 832; State v. LaRose, 71 N. H. 435, 443, 52 Atl. 943; and Chester v. State, 107 Miss. 459, 65 South. 510; Tucker v. U. S. 196 Fed. 260, 41 L. R. A. n. s. 70, and was recognized in Birchard v. Booth, 4 Wis. 67, 73.
It is held not a proper plea for the court to accept in a capital case (Comm. v. Shrope, 264 Pa. St. 246, 107 Atl. *180729, 6 A. L. R. 690), or in cases where imprisonment is the only penalty (Hudson v. U. S. 9 Fed. 2d 825), although the contrary is now held in Hudson v. U. S. 272 U. S. 451, 47 Sup. Ct. 127, where this plea is discussed at length.
Since as early as sec. 3, ch. 132, R. S. of 1849, subsequently appearing as sec. 4609 and now sec. 353.01, Stats., express provision has been made as to what is necessary to support a conviction, reading that no person indicted or informed against for an offense “shall be convicted thereof unless by confession of his guilt in open court, or by admitting the truth of the charge against him by his plea or demurrer, or by the verdict of a jury accepted and recorded [by the] in court.”,
I submit that in passing upon- the question of what is a conviction under such a statute as here involved, or sec. 325.19, infra, the impeaching statute, the above express statutory definition of conviction should be followed, and that therefore the nolo contendere plea interposed in the prior case was not the statutory plea “admitting the truth of the charge against him.”
While the early decisions in Douglass v. State, 3 Wis. 820, that no judgment of guilty in a criminal case can be rendered where there is neither arraignment nor plea, and in Davis v. State, 38 Wis. 487, that it is beyond the power of the court to order a plea of not guilty to be entered without defendant’s consent, have been limited or overruled in Hack v. State, 141 Wis. 346, 353, 124 N. W. 492, yet it has never been held in this court, prior to the present case, that there is now no substantial distinction between a plea of guilty admitting the truth of the charge and one which does not so admit.
It would seem that if a conviction upon the plea of nolo contendere can now be properly used, as is held by the majority here, to increase the punishment upon conviction after trial or plea of guilty in a subsequent prosecution, that it *181might far more properly be used for impeaching the credibility of witnesses under such statutes as sec. 325.19; yet in the case decided in 1916 of Olszewski v. Goldberg, 223 Mass. 27, 28, 111 N. E. 404, citing White v. Creamer, supra, it was held that a conviction supported only by a plea of nolo contendere cannot be so used, and it is so held in State v. Conway, 20 R. I. 270, 38 Atl. 656, and in Collins v. Benson, 81 N. H. 10, 120 Atl. 724.
The plea being one that the court need not accept, when accepted, however, it should carry with it no more than its well recognized attributes and limitations, and though it may ripen into a judgment, yet its special identity is not thereby submerged or entirely lost.