Page:Federal Reporter, 1st Series, Volume 6.djvu/172

 160 FSDEBAL BEFOBTEB. �the' indiotment, in alleging a prior conviction of the defend- ant, should allege a judgment on the verdict, not as consti- tuting the conviction, but as oonclusive evidence, that it had not been set aside and ^was stiU. in force. It follows, then, "that the defendant, having pleaded guilty to an indictment oharging hiin with an assault with adangerous weapon, he was thereby convicted of such crime — ^proven guilty thereof. It only remains to consider whether this crime was punishable by imprisonment in the penitentiary or not. As bas been stated, the punishment prescribed by the statute defining the offence is either a fine, imprisonment in the j ail or in the peniten- tiary, in the discretion of the court. For the defendant it is contended that it was not punishable in the penitentiary, sim- ply beoause it was not actually so punished, and section 764 of the Or. Cr. Code is relied upon as in some way supporting this position. Now, this section is simply deolaratory of the pre- existing power of the court, and only requires it to determine the punishment applicable to a particular case, ,when that is left by the statute undetermined between certain limits or kinds. But it does not authorize the court to impose a pun- ishment in any Case which the law has not otherwise pre- scribed for the commission of the offence. Under the. Code a crime is punishable — may be punished — by any punish- ment which the court is authorized to impose. It is punished by the punishment actually imposed, but it is punishable by any punishment that the law authorizes the court to impose. The phrase "is punishable" cannot be construed to mean more or less than "may be punished," or "liable to be pun- ished.» �In Pcople V. Van Steenberg, 1 Park. C. B. 39, it was held that a crime which, in the discretion of the court, might be punished by a fine or imprisonment in the jail or peniten- tiary, was a felouy within the statute definition thereof, to- wit, "an offence for which the offender, on conviction, shall be liable by law to be punished by death or imprisonment in the state prison." �In People v. Park, 41 N. Y. 21, it was held that a person sentenced upon a conviction of a burglary, punishable gener- ��� �