
    The People of the State of New York, Respondent, v. James S. Lyon, Appellant.
    Prior to the Penal Code, where a crime of the grade of felony was committed through the agency of a guilty instrument, the instigator was regarded as an accessory before the fact, and must be indicted and tried as such.
    A crime which might be punished by imprisonment in a State prison was _ a felony. To constitute that grade of offense, it was not necessary that it must be so punished; the maximum punishment to which the offender is liable is the test by which the degree of the crime was determined.
    Where, therefore, an indictment charged the accused as a principal with the commission, prior to, the passage of the Penal Code, of an offense, under the act of 1875 (Chap. 19, Laws of 1875), providing for the punishment of “ wrongs affecting public moneys,” etc., and it appeared on the trial that defendant was absent at the time, took no part in the particular transaction in question, and had no knowledge thereof; and the most that could be claimed from the evidence was that he was accessory before the fact, Held, that the offense charged was a felony, and a conviction could not be sustained.
    The distinction between the common-law rule and that of this State, as to what constitutes a felony, pointed out.
    
      Fassett v. Smith (23 N. Y. 252), distinguished and limited.
    
      People v. Lyon (33 Hun, 623), reversed.
    (Argued March 12, 1885;
    decided June 2, 1885.
    
      Appeal from judgment of the G-eneral Term of the Supreme Court, in the fifth judicial department, entered upon an order made October 31, 1884, which affirmed a judgment of the Court of Oyer and Terminer in and for the county of Erie, entered upon a verdict convicting defendant of the crime set forth in the opinion, wherein, also, the material facts are stated. (Reported below, 33 Hun, 623.)
    
      Samuel Hand for appellant.
    Before an offense not charged in the indictment can he considered by the jury upon the question of knowledge or intent of the defendant in committing the offense charged against him, he must be proved to have committed such other offense. (1 Whart. Prin. & PL, §§ 631, 647, p. 529 ; Whart. Grim. Ev., § 48, p: 46 b ; id., § 46, p. 44; id., §104; People v. Howe, 2 T. & C. 383; Comm. v. Shepard, 1 Allen, 575; Copperman v. People, 56 N. Y. 593; Coleman v. People, 55 id. 90; Comm. v. Edgerly, 10 Allen, 184; R. v. Harris, F. & F. 342; People v. Thomas, 3 Park. Cr. 256; People v. Kennedy, 32 N. Y. 141.) Any illegal evidence that would have a tendency to excite the passions, arouse the prejudice, awaken the sympathies or warp or influence the judgment of the jury in the least degree cannot be considered harmless. (Anderson v. R., W. & O. R. R. Co., 54 N. Y. 334; Hagan v. Dillon, 76 id. 171; Coleman v. People, 58 id. 561.) If the prosecution had given any proof that Lyon had committed the offense charged against him, they could not prove acts of Boric subsequent to the offense charged. (Whart. Grim. Ev.. § 104; 1 Whart. Prin. & PL, §§ 631, subd. 4, 647; Howe v. People, 2 T. & C. 383.) The defendant is charged in the indictment as principal with the commission of a felony not a misdemeanor. (Laws of 1875, chap. 19; R. S. [7th ed.] 2499; People v. Van Steenburgh, 1 Park. Cr. 39; Burrill’s Law Diet. 613; People v. Park, 41 N. Y. 21; Andrews v. Dietrich, 14 Wend. 31; People v. Borges, 6 Abb. 132; Klock v. People, 2 Park. 676; Barbour’s Cr. Law [3d ed. ], vol. 1, pp. 18, 19; People v. Adler, 3 Park. Cr. 249; People v. Finn, 87 N. Y. 533; State v. Smith, 8 Blatchf. 489; People v. Bragle, 
      26 Hun, 378.) The crime being a felony, proof of actual or constructive presence of the defendant was indispensable to the people’s case under the indictment which charged him as principal only. (Wixson v. People, 5 Park. Cr. 119; People v. Katz, 23 How. 93; MeCarney v. People, 83 N. Y. 408.) The fact that the money was used in the business of the firm did not prove that the defendant received it. (Bork v. People, 16 Hun, 476.) When the act is not criminal per se, but is only criminal if done with a particular intent, such intent must be alleged and proved according to the terms of the statute. (People v. Johnson, 1 Park. Cr. 564; 3 Greenl. Ev. [13th ed.], § 13, p. 14; State v. Mallory, 34 N. J. L. 410.) The court erred in refusing to charge the jury that evidence of good character is not only of value in doubtful cases, but that it may raise a doubt in the minds of the jury, when without it none would exist. (Remsen v. People, 43 N. Y. 6; Stover v. People, 56 id. 319; Cancemi v. People, 16 id. 501.) That the crime of which the defendant was convicted was beyond all question a felony, and, hence, under this indictment as principal in the commission of such a crime, he cannot be convicted, the proof being clear and decisive that at the time of its commission he was thousands of miles away, and could have no act or part in its commission, and could, at the most, only have been charged as an accessory before the fact. (Hawkins’ Pl. of Cr., vol. 1, p. 72, § 5 [Curwood’s ed.]; Penal Code, § 5; People v. War, 20 Cal. 117; State v. Smith, 8 Blatchf. 489; Buford v. Cowen, 14 B. Monr. 24.) In the absence, therefore, of any attempt at definition in our own statute this offense was clearly a felony in analogy to the common-law rule, being a new crime created by statute, which authorized imprisonment in State prison as its punishment. (1 Hawkins’ Pl. of Cr. 72, § 5; 1 Hale’s Pl. of Cr. 703.) The definition of a felony contained in the statute should be deemed exhaustive. If classes crimes as felonies and misdemeanors, and the only test as to the class to which any new crime belongs is the punishment. If liable to imprisonment in a State prison, it is a felony; if not, it is a misdemeanor, whether a felony at common law or not. (People v. Finn, 87 N. Y. 533; 26 Hun, 58; People v. Dutcher, 83 N. Y. 240.)
    
      Edward W. Hatch, district attorney, for respondent.
    The indictment was sufficient. (Bork v. People, 91 N. Y. 5.) The act of Bork in taking the money was the act of Lyon. (People v. Adams, 3 Den. 190; People v. Hall, 57 How. Pr. 347; 1 Bl. Com. 429, 474; Co. Litt. 25S, note a; Broom’s Maxims, 373; 7 M. & G. 33, 32 ; 2 Burrill’s Law Diet. 853.) The offense charged in the indictment is a misdemeanor, as upon conviction the court has power to fine without imprisonment in the State prison, and there are no words in the statute describing the offense which makes it a felony. (Fassett v. Smith, 23 N. Y. 252; Shay v. People, 22 id. 317; Thorne v. Turck, 94 id. 90; Nicholson v. Welch, 60 id. 362: Foster v. People, 50 id. 604.) It is clearly evident that it was never the intent of the legislature to make the offense created by this statute a felony. (Commonwealth v. Barlow, 4 Mass. 439; Commonwealth v. Casey, 12 Cush. 246.) The taking of the money constituted the offense, and this being a misdemeanor, all connected with it are principals. (People v. Erwin, 4 Den. 129; Irvine v. Wood, 51 N. Y. 224; People v. Wilson, 5 Park. Cr. 19; Russell on Crimes, 27; King v. Johnson, 7 East, 65; People, ex rel. v. Mead, 28 Hun, 227.) In order, however, to sustain this conviction, it is not necessary to determine whether or not this is a misdemeanor, for Lyon was a principal in the commission of this offense. (1 Whart. Cr. L., §§ 207, 208; Pickard v. Georgia, 30 Ga. 757; State v. Shultiff, 18 Me. 368; Beese v. State, 12 Ohio [Critchfield], 146; Lowenstein v. People, 54 Barb. 299; Mackesey v. People, 6 Park. 114.) Evidence which establishes guilty knowledge and fraudulent intent was competent to establish the existence of a conspiracy between Bork and Lyon. (Coleman v. People, 55 N. Y. 81; Pierson v. People, 79 id. 424; People v. Dowling, 84 id. 486; Pontius v. People, 82 id. 347; People v. Wood, 3 Park. Cr. 681; Wyman v. People, 4 Hun, 511; 1 Greenl. on Ev., § 53; Commonwealth v. Eastman, 1 Cush. 216; Common
      
      wealth v. Miller, 3 id. 250; Commonwealth v. Merriman, 14 Pick, 519; Commonwealth v. Tuckerman, 10 Gray, 173; Commonwealth v. Coe, 115 Mass. 481; People v. Gibbs, 93 N. Y. 470; People v. Spellman, 20 Alb. L. J. 96; Meyer v. People, 80 N. Y. 364; 92 id. 607; U. S. v. Russell, 19 Fed. Rep. 591; Nat. Trust Co. v. Gleason, 77 N. Y. 400; Paige v. People, 3 Abb. on App. 439; 6 Park. Cr. 683.) Proof of the body of the offense establishes intent to defraud. “(People v. Dalton, 15 W end. 581; Reg. v. Naylor, 10 Co. C. C.151; 1 L. R., C. C. 4; 11 Jur. [N. S.] 910; 35 L. J. M. C. 61; 14 W. R. 58; 13 L. T. [N. S.] 381; Henny v. People, 31 N. Y. 330; Filkins v. People, 69 id. 101; Crowley v. People, 8 Abb. N. C. 1; Case v. Phelps, 39 N. Y. 164.) FTo error was committed in receiving in evidence the books of the firm of Lyon, Bork & Go., and Lyon & Go., or of receiving in. evidence the checks and memorandums. (Sherman v. Smith, 42 How. Pr. 198; Bedaver v. Strong, 23 Hun, 445; Bliss v. Madison, 52 Barb. 345; Townsend v. Brown, 11 Abb. 355; King v. Lama, 69 N. Y. 24; Van Schoiek v. N. Ins. Co., 68 id. 434; 16 Hun, 504; 14 id. 452; 6 id. 353; Beck v. Ellis, 6 B. & C. 145; 9 D. & R. 147; Farrell v. People, 21 Hun, 485; 12 Week. Dig. 57; Hope v. People, 83 N. Y. 418.)
   Rapallo, J.

The defendant was convicted in the Court of Oyer and Terminer of Erie county, under chapter 19 of the Laws of 1875, upon an indictment charging him with having, on the 14th of September, 1875, fraudulently and feloniously obtained and received from Joseph Bork, then treasurer of the city of Buffalo, the sum of $2,200 of the funds of that city, held by said Bork as such treasurer. The second count of the indictment charged the defendant with having feloniously and wrongfully obtained said money and converted it to his own use. In both counts the- defendant is charged as a principal, and there is no count charging him as an accessory.

The money was not received by the defendant personally. It was deposited' by Bork, or by his direction, with the banking-house of Lyon & Co., of the city of' Buffalo, of which firm Bork and the defendant were members, and was used by that firm in its business. The defendant had no knowledge of the particular transaction upon which he was indicted, he being at the time in the Territory of Utah, where he had been for about a month before, and he did not return to Buffalo until about ten days after the transaction. The prosecution, to make out their case against him, relied upon evidence that on prior occasions Bork had, with the knowledge of the defendant, used the funds of the city, in his hands as treasurer, in the business of the firm, and it was claimed that this evidence established that an understanding existed between Bork and the defendant that the city funds should be so used whenever required. The conviction rests upon this theory.

On the part of the defendant the point is taken that the offense of which the defendant was convicted was a felony ; that there is no evidence upon which his conviction, as a principal, could be sustained, he not having been either actually or constructively present at the commission of the offense ; that the most that could be claimed is that the evidence tended to prove that he was an accessory before the fact, and that, as such, he could not be convicted under an indictment charging him as a principal.

On this ground, among others, the defendant moved in the Court of Oyer and Terminer for á new trial, and that being denied, he appealed to the General Term of the Supreme Court. Both of those tribunals conceded that if the offense was a felony the conviction could not stand, and we concur in that view.

Prior to the adoption of the Penal Code, where a crime of the grade of felony was committed through the agency of a guilty instrument, the instigator was regarded as an accessory before the fact, and must be indicted and tried as such. (People v. Erwin, 4 Denio, 129; Irvine v. Wood, 51 N. Y. 224; People v. Wixson, 5 Park. Cr. 121; Russell on Crimes, 27; Whart. on Crim. Law, § 114; McCarney v. People, 83 N. Y. 409, 412, 413.) In cases of misdemeanor, however, there were no accessories. All who aided or participated in the crime were principals; the present conviction was sustained in the court below on the ground that the offense created by the act of 1875 (Chap. 19) was a misdemeanor only.

The act itself does not define in term's the grade of' the offense, but it does prescribe the punishment, which is imprisonment in a State prison for a term not less than three years or-more than ten years, or a fine not exceeding five times the loss resulting from the-fraudulent act, or by both such fine and imprisonment.

Statutes creating new offenses do sometimes declare that they shall be felonies, but the instances, although numerous in England, are here rare. As a general rule, the grade of the offense is determined by the nature of the punishment prescribed. The term “ felony,” in the general acceptation of the English law, comprised every species of crime which at common law occasioned a total forfeiture of lands or goods, or both, and to which might be superadded capital or other punishment according to the degree of guilt. (4 Bl. Com. 94, 95.)

In England the rule with regard to felonies created by statute seems to be that not only those crimes which are declared in express words to be felonies, but also those which are decreed to undergo judgment of life and member by-any statute, become felonies thereby, whether the word “ felony V be omitted or mentioned. (1 Bussell on Crimes [4th ed., 78], 44 ; Hawk. Bl. of Cr., chap. 40, § 1.)

The word misdemeanor ” is applied to all crimes less than felonies, comprehending all indictable offenses less than felonies. Among these are included in England perjury, battery, libel, conspiracies, public nuisances, etc. (1 Bussell on Crimes [4th ed., 79], 45.)

In this State forfeitures of property on conviction of crime have been abolished, and the common-law definition of felony is inapplicable, but the principle of determining the grade of the offense by the character of the punishment is recognized in the clearest manner. Many crimes which, at common law, were only misdemeanors are here felonies, and no instance can be found in which an offense, which is declared to be a misdemeanor, can be visited with the punishment prescribed for a felony.

Part IY of the Revised Statutes, entitled “ An act concerning crimes and punishments, proceedings in criminal cases and prison discipline,” covered, at the time of its enactment, the whole subject referred to in its title. Chapter 1, entitled “ Of crimes and their punishment,” is divided into seven titles, in Avhich crimes are classified as follows: The first title is entitled “ Of crimes punishable by death.” The second, third, fourth and fifth titles relate to offenses punishable by imprisonment in a State prison.” The sixth title is “ Of offenses punishable by imprisonment in a county jail and by fines,” and under this title are enumerated all offenses of the grade of misdemeanors. The maximum term of imprisonment for any of the misdemeanors enumerated in this title, with but a single exception in section 36, is one year’s imprisonment in a county jail, while in many cases a much milder punishment is prescribed, and by section 40 (2 R. S. 697), it is provided that every person convicted of any misdemeanor, the punishment of which is not prescribed in this or some other statute, shall be punished by imprisonment in a county jail not exceeding one year, or by fine not exceeding $250, or by both such fine and imprisonment.”

Every one of the offenses enumerated in this sixth title of chapter 1, part IY, with the solitary exception of petit larceny, is therein declared in terms to be a misdemeanor, but there is not a single offense enumerated .in the second, third, fourth or fifth titles, relating to offenses punishable by imprisonment in a State prison, which is in terms declared to be a felony, although among these offenses there are but few wfiiicli were felonies at common law; the greater part of them, such as forgery, perjury, false pretenses and many others, having been only misdemeanors at common law. Forgery was made a felony by statute in the reign of George II, first by a temporary and afterward by a permanent enactment, but, unless there has been some very recent change, perjury and false pretenses are still misdemeanors, while petit larceny, though a felony at common law, is only a misdemeanor in this State, notwithstanding that the degree of the crime is not expressly declared in the statute. It is obvious that the degree of the offense, according to the common law, 'does not afford any guide for the determination of that question in this State. The seventh title of chapter 1, part IV of the Revised Statutes, however, furnishes the rule hy which the degree of the offense can be ascertained. This title contains “ General provisions concerning crimes and their punishment.” Section 30 of this title (2 R. S. 702) provides that the term ‘ felony,’ when used in this act, or in any other statute, shall be construed to mean an offense for which the offender on conviction shall be liable by law to be punished by death, or by imprisonment in a State prison.”

Although, as has been already remarked, the term “ felony ” is not used in any of the provisions of the Revised Statutes which declare the offenses punishable by imprisonment in a State prison, yet it is used in many other provisions relating to persons convicted of such offenses. For instance, sections 13 and 14 of article 3 of title 4, chapter 1, part IV (2 R. S. 683) provides that any person conveying into any place of confinement any disguise or other thing, with intent to facilitate the escape of any prisoner, detained for any felony whatever, or on a charge for any felony, or hy any means aiding such a prisoner to escape, shall he punished by imprisonment in a State prison not exceeding ten years. Section 15 of the same title provides that similar assistance to a prisoner confined for any criminal offense, other than a felony, shall he punished by imprisonment in a county jail not exceeding one year, or by fine, or both.

Section 6 of title 7 (2 R. S. 698) provides that every person who shall be an accessory to any felony before the fact shall, upon conviction, be punished as a principal in the first degree. By section 19 (2 R. S. 701) a sentence of imprisonment in a State prison for any term less than life suspends all the civil rights of the person so sentenced, and forfeits all public offices and private trusts or powers during the term of such imprisonment. By section 23, before its repeal, no person sentenced upon a conviction for felony was competent to testify in any cause unless pardoned, but no sentence on a conviction for any offense other than a felony, rendered the convict incompetent. In all these cases there is no escape from the statutory definition of the term “ felony.”

The same rule for determining what is a felony is preserved by the Penal Code, which went into effect December 1, 1882. It declares (§ 4) that a crime is either a felony or a misdemeanor. Section 5, that a felony is a crime which is or may be punishable by either death or imprisonment in a State prison. Section 6, that every other crime is a misdemeanor. If this Code established any new rule, or increased the degree of guilt, it could not of course affect the defendant, as it would be an ex post facto law, the offense with which he was charged having been committed before its passage, and we do not refer to it for any such purpose, but simply as throwing light upon the meaning of the previously existing statutes, of which the provisions last cited are a mere condensation.

The claim now made on the part of the prosecution that, notwithstanding the clear and harmonious provisions of the Revised Statutes, which are aptly condensed in sections 4, 5 and 6 of the Penal Code, the offense for which the defendant was tried and convicted, an offense for which he was liable to punishment by imprisonment in a State prison for not less than three nor more than ten years, and for which he was in fact sentenced to imprisonment in a State prison at hard labor for a term of four years, was a simple misdemeanor, strikes us as so monstrous that we should not have deemed it justifiable to go into such an extended discussion of the subject, were it not that the conclusions at which we -have arrived come in conflict with a decision of this court rendered in the year 1861, in the case of Fassett v. Smith (23 N. Y. 252), in which it was held in the prevailing opinion of James, J., that the offense of obtaining goods, etc., by false pretenses, which at common law was a mere misdemeanor, was not changed by the Revised Statutes into a felony. That decision is the main reliance of the prosecution to support the judgment here appealed from. Fassett v. Smith was a civil action to avoid a satisfaction-piece of a mortgage and restore the lien of the mortgage, on the ground that the satisfaction-piece had been obtained by fraud. The defendants claimed to be bona fide subsequent purchasers or incumbrancers of the mortgaged premises, for value, without notice of the fraud. It was conceded in the prevailing opinion that if the fraud amounted to a felony they would not be protected. Section 53 of article 4, title 3, chapter 1, part 4, provided that “ Every person, who with intent to cheat or defraud another, shall designedly, by color of any false token or writing or by any other false pretense, obtain the signature of any person to any written instrument, or obtain from any person any money, personal property or valuable thing, upon conviction thereof, shall be punished by imprisonment in a State prison not exceeding three years, or in a county jail not exceeding one year, or by a line not exceeding three times the value of the money, property or thing so obtained, or by both such fine and imprisonment.” Section 54 provides, that if the false token shall be a negotiable instrument purporting to have been issued by a bank not in existence, the punishment shall be imprisonment in a State prison not exceeding seven years. The article containing these provisions comes between article 2, which treats of forgery and counterfeiting, and article 4, which treats of robbery and embezzlement.

The head-note to the case of Fassett v. Smith states the result of the decision to be, that the definition of the term “ felony ” in the Revised Statutes has not so changed the common law as to prevent a purchaser in good faith and for value, obtaining title to goods which the original vendee procured by false pretenses. If this is the extent of the decision, and its only effect is to protect a bona fide purchaser of goods obtained by a felony of the description referred to, the decision has no particular bearing on the present case, and may be of little practical importance, inasmuch as the Penal Oode (§ 528) now makes obtaining goods by false pretenses larceny. But the opinion in Fassett v. Smith goes farther, and holds that section 30 does not assume to define the term “ felony ” except when used in a statute, and that that term not being used in the statute relating to false pretenses, the common-law character of the crime of obtaining goods, etc., by false pretenses was not changed.

This interpretation of the statute is at variance with all previous decisions on the subject in criminal and other prosecutions, and if applied to criminal cases would destroy the harmony and intelligibility of the system established by the Revised Statutes, which has already been shown. Even giving to the definition in section 30 the restricted meaning attributed to it by the learned judge, there could be no possible doubt of its application to the term “ felony ” in the statutes, before referred to, relating to the offenses of aiding a prisoner to escape, of subjecting an accessory before the fact to the same punishment as a principal in the first degree, suspending the civil rights of one sentenced to State prison, of rendering one convicted of the offense incompetent as a witness, etc. Thus for some purposes the offense would have to be treated as a felony, while for others it would not. The consequences of a conviction would be those visited upon a conviction for a felony, while the indictment and trial would be governed by the rules applicable to misdemeanors, and it might be competent, under the provisions of section 26, article 6 of the Constitution, to make the offender triable in a Court of Special Sessions without a common-law jury. See article 6, section 26, which is as follows: Courts of Special Sessions shall have such jurisdiction of offenses of the grade of misdemeanor as. may be provided by law.” (People v. Dutcher, 83 N. Y. 240; People v. Finn, 87 id. 533.)

Prior to the case of Fassett v. Smith, the decisions were, both in civil and criminal cases, uniformly in accord with the view which we have taken as to the effect of the statutory definition of the term “felony.” In Mowrey v. Walsh (8 Cow. 238), which was decided in 1828, before the Revised Statutes were enacted, it had been held that one who had obtained goods by fraud, not amounting to a felony, could convey a good title to a Iona fide purchaser for value, though it was conceded that if the goods were obtained by a felony no title would pass; the effort of the original vendor was to establish that the fraud by which the goods were obtained from him was such that the person obtaining them was guilty of larceny. The fraud consisted of a forged recommendation and guaranty, and amounted only to a false pretense. But the court, Savage, Ch. J., delivering the opinion, held that as they were obtained only by a fraud which, at that time, did not constitute felony, the tona fide purchaser from the fraudulent vendee acquired a good title. But in the subsequent case of Andrew v. Dieterich (14 Wend. 31), decided in 1835, the same eminent judge delivered the opinion, holding that by the Revised Statutes obtaining goods by false pretenses was made a felony, and the law was, therefore, changed from what it was when Mowrey v. Walsh was decided, and he held that no title passed even to a tona fide purchaser from one who had obtained the goods by false pretenses. He construed section 30 as defining what constituted a felony, and held that as, by 2 R. S. 767, § 53, every person obtaining goods by false pretenses was liable to be punished by imprisonment in the State prison, he was guilty of a felony, and that the courts were bound to say that when the legislature altered the'law as to what constituted a felonious talcing, they intended that such alteration should have its full effect, and the principle should be extended and carried out in all its ramifications.

In Peabody v. Fenton (3 Barb. Ch. 451, 462), decided in 1848, Chancellor Walworth says: “There can be no doubt from the evidence in this case that Fenton obtained the mortgage from the complainant by false pretenses amounting not only to a gross fraud, but also to a felony under the Revised Statutes.” The doubt which he is stated in Fassett v. Smith to have expressed, was not as to whether the false pretenses amounted to a felony, but as to the correctness of the holding in Andrew v. Dieterich (14 Wend. 36) that the operation of the Revised Statutes in making such frauds felonies was such that the power of a fraudulent vendee of goods to transfer a valid title to a tona fide purchaser no longer existed, and on this point he’ declined to express an opinion.

In Robinson v. Dauchy (3 Barb. 20, 29) the court treated the obtaining of goods by false pretenses as a felony. In People v. Van Steenburgh (1 Park. Cr. 39) it was held that an offense as to which there was a discretion in the court to punish either by imprisonment in the State prison or by fine or imprisonment in a county jail, was within the statutory definition of felony. Accordingly one who, without a design to effect death, killed a human being, while engaged in the violation of an act punishable as above, was held to have been engaged in the commission of a felony, and was on that ground convicted of murder and sentenced to be executed. This view of the law was approved by the Supreme Court to whom the question was submitted by the governor. In Shay v. People (22 N. Y. 317) it was held that one who had been convicted of petit larceny as a first offense was a competent witness, inasmuch as that offense was not punishable by death or imprisonment in the State prison, and therefore was not convicted of a felony within the definition in 2 B. S. 702, § 30. In People v. Park (41 N. Y. 21) it was held that burglary in the third degree was a felony under the definition in 2 B. S. 702, § 30, being punishable by imprisonment in the State prison, although the term “ felony ” is not used in the statute defining the offense. The opinion was delivered by the same learned judge who delivered the opinion in Fassett v. Smith, and he says that his conclusion is not in conflict with Fassett v. Smith, but he reconciles the cases by placing his opinion upon a new ground, different from that taken in 23d Hew York, and in the later case says that Fassett v. Smith related to obtaining goods by false pretenses, the punishment for which was in the alternative — State prison, county jail or fine — and hence not within the statutory definition of felony.

This last ground we are quite unable to adopt, inasmuch as the language of section 30 is that the term “felony” shall be construed to mean an offense for which the offender is liable to be punished by death or by imprisonment in a State prison.

It is not confined to cases in which he must be so punished. The maximum punishment to which he is liable to be subjected is the test by which the degree of the crime must be determined. (People v. Van Steenburgh, supra.)

In the case now before us there is no alternative of punishment by imprisonment in a county jail. If there is any imprisonment it must be in a State prison, though a fine may be substituted. This we apprehend, however, is not very important.

In People v. Bragle (26 Hun, 378; affirmed, 88 N. Y. 586) the offense created by the very act now under consideration (Laws of 1875, chap. 19) was treated as a felony, though the point was not expressly" decided. The points raised were of no importance unless the offense was a felony. But in overruling them the court did not intimate any doubt as to the grade of the offense, and overruled them on other grounds.

The case of Fassett v. Smith, if construed as holding only that the statutory change, which converted the offense of obtaining goods by false pretenses into a felony, did not change the former rules of law in respect to the rights of a bona fide purchaser of goods from a fraudulent vendee, need not be further discussed here. Chief Judge Savage, in Andrew v. Dieterich (14 Wend. supra) was of opinion that the statutory change in the grade of the offense should be carried out in all its ramifications.

Chancellor Walworth doubted whether that was a correct view of the legislative intention and of the effect of the statute.

And even now under the Penal Code, making the offense larceny, the same question is presented. We do not propose to consider it here. All .that is necessary to say now is, that notwithstanding the views expressed in the prevailing opinion in Fassett v. Smith, we are of opinion that under Laws of 1875, chap. 19, and 2 E. S. 702, § 30, the offense for which the defendant was indicted was a felony, and for the reasons stated, the conviction cannot be sustained.

The conceded facts being such that, under the present indictment, no conviction could be had, it seems useless to direct a new trial.

The judgment of the Supreme Court’ and Court of Oyer and Terminer should be reversed.

All concur.

Judgment reversed.  