Gray

The defendant was indicted for and convicted of the crime of seduction under promise of marriage ; and the judgment of the court below was, that he should be punished by a fine, and in default of payment thereof by imprisonment in the county jail at the rate of two dollars per day, etc. He appeals from the judgment and from an order denying a motion for a new trial.

In our opinion the contention of appellant that the offense of which he was convicted was barred by section 801 of the Penal Code must be sustained; and, therefore, it was not necessary to consider the many other points which he makes for a reversal, some of which at least raise grave questions.

The offense with which appellant was charged (Pen. Code, see. 268) is punishable either by imprisonment in the state prison or by a fine. It may therefore be either a felony or a misdemeanor; and whether it is to be considered the one or the other depends upon the character of the judgment rendered by the trial court. If the judgment be imprisonment in the state prison, the crime is a felony,—if a fine only or imprisonment in the county jail, a misdemeanor. It is provided in section 17 of the Penal Code that in such a ease if…