" In People v. Morlock the Supreme Court of Michigan (1926) 234 Mich. 683, 209 N.W. 110. Under Michigan's rule enhancing the punishment for second offenses, the Court held that the prior conviction, though on appeal, could be made the basis of a first conviction. There the Court said: "The complaint, warrant, and information charged the violation as a second offense.

The courts of other jurisdictions have likewise upheld the practice of alleging the prior conviction even though the judgment based thereon was on appeal at the time of the trial for the second offense. ( State v. Eisminger, 124 Kan. 464 [260 P. 661]; State v. Smith, 128 Ore. 515 [ 273 P. 323]; People v. Morlock, 234 Mich. 683 [ 209 N.W. 110]; Shaffer v. State, 124 Neb. 7 [244 N.W. 921].) [6a] There was no error in receiving evidence of the former felony because the "testimony fails to show any similarity in the means used to produce" the two miscarriages.

Several other jurisdictions, as we have noted, approve the use of a prior conviction pending appeal as the predicate for an enhanced penalty. E.g., Prock v. State, 471 So.2d 519 (Ala.Crim.App. 1985); Wright v. State, 656 P.2d 1226 (Alaska Ct.App. 1983); State v. Swartz, 140 Ariz. 516, 683 P.2d 315 (Ct.App. 1984); Birchett v. State, 291 Ark. 379, 724 S.W.2d 492 (1987); People v. Sarnblad, 26 Cal.App.3d 801, 103 Cal.Rptr. 211 (Ct.App. 1972); People v. District Court, Etc., 192 Colo. 375, 559 P.2d 235 (1977); Maisonet v. State, 448 N.E.2d 1052 (Ind. 1983); State v. Heald, 382 A.2d 290 (Me. 1978); People v. Morlock, 234 Mich. 683, 209 N.W. 110 (1926); Jackson v. State, 418 So.2d 827 (Miss. 1982).

See, e.g., Prock v. State, 471 So.2d 519 (Ala.Crim.App. 1985); Wright v. State, 656 P.2d 1226 (Alaska Ct.App. 1983); State ex rel. Corbin v.Court of Appeals, 103 Ariz. 315, 441 P.2d 544 (1968); Statev. Swartz, 140 Ariz. 516, 683 P.2d 315 (Ct.App. 1984); Birchett v. State, 291 Ark. 379, 724 S.W.2d 492 (1987); Glick v. State, 286 Ark. 133, 689 S.W.2d 559 (1985); People v. Sarnblad, 26 Cal.App.3d 801, 103 Cal.Rptr. 211 (1972); People v. Clapp, 67 Cal.App.2d 197, 153 P.2d 758 (1944); People v. District Court of Tenth Judicial Dist., 192 Colo. 375, 559 P.2d 235 (1977); Maisonet v. State, 448 N.E.2d 1052 (Ind. 1983); State v. Eisminger, 124 Kan. 464, 260 P. 661 (1927); State v. Martin, 316 So.2d 740 (La. 1975); State v. Heald, 382 A.2d 290 (Me. 1978); People v.Morlock, 234 Mich. 683, 209 N.W. 110 (1926); Jackson v.State, 418 So.2d 827 (Miss. 1982); State v. Radi, 176 Mont. 451, 578 P.2d 1169 (1978), appeal after remand, 185 Mont. 38, 604 P.2d 318 (1979); State v. Romero,1 Or. App. 217, 461 P.2d 70 (1969); State v. Gallegos, 849 P.2d 586 (Utah Ct.App. 1993); State v. Wimmer, 152 Wis.2d 654, 449 N.W.2d 621 (1989), review denied, 454 N.W.2d 806 (Wis. 1990); cf. State v. Tipton, 77 N.M. 1, 419 P.2d 216 (1966) (stating that for purposes of habitual-offender statute, plea of guilty constitutes a "conviction" even though sentence has not yet been imposed).

The effect of the appeal was as though it had not been taken. State v. Eisminger, 124 Kan. 464, 260 P. 661 (1927); People v. Morlock, 234 Mich. 683, 209 N.W. 110 (1926); State ex rel. Corbin v. Court of Appeals, Division I, 103 Ariz. 315, 441 P.2d 544 (1968); People v. Sarnblad, 26 Cal.App.3d 801, 103 Cal.Rptr. 211 (1972). Equal Protection Violation — Unequal enforcement of habitual offender statute

"'" In People v. Morlock, 234 Mich. 683, we held that a violation of the prohibition law might be charged as a second offense, although the first conviction had been removed to the Supreme Court on exceptions, before sentence, and remained there undecided still. In People v. Adams, 95 Mich. 541, we held that in a prosecution for second offense under the local option law, the record of the first conviction, which remains unreversed, is admissible, even though a void sentence was imposed.

This limitation was unnecessary. The judgment was not vacated by the appeal. General Statutes, Cum. Sup. 1939, 1464e(b); Deposit Bank v. Frankfort, 191 U.S. 499, 511, 24 Sup. Ct. 154; Shaffer v. State, 124 Neb. 7, 10, 244 N.W. 921; People v. Morlock, 234 Mich. 683, 685, 209 N.W. 110. See also, for an extensive discussion of the wide field open to the trial judge in obtaining information, after conviction, relevant to mitigation or aggravation of the seriousness of the offense, People v. Popescue, 345 Ill. 142, 177 N.E. 739, 77 A. L. R. 1199.

Egan v. Jones, 21 Nev. 433 ( 32 P. 929). This, in effect, was the holding in People v. Knapp, 26 Mich. 112; People v. Farrell, 146 Mich. 264; People v. Morlock, 234 Mich. 683, and the sense in which the term is used in the criminal statutes, 3 Comp. Laws 1929, §§ 17130, 17329, 17341, 17346, and Act No. 328, Pub. Acts 1931, § 5, and accords with the common use of the language. It is claimed defendant was not convicted of an infamous crime because no jury found him guilty; that a constitutional jury of 12 is an essential part of the mandatory tribunal for the trial of criminal cases in courts of record and cannot be waived by the defendant consenting to proceed with 11 jurors.

"Where an officer, by the exercise of his power of observation, in a place where he has a lawful right to be, sees evidence which leads him to believe that a felony has been committed or is contemplated, he has a right to arrest the suspected offender and search his person or property."People v. Chomis, 223 Mich. 289; People v. Cardella, 233 Mich. 505; People v. Morlock, 234 Mich. 683; People v. Duvall, 243 Mich. 498; People v. Nappo, 251 Mich. 89; People v. Mohl, 252 Mich. 469; People v. Ring, 267 Mich. 657. The officers were legally in the home of Alfred Panknin by express invitation, at the time of the observation of the shoes of defendant connecting him directly with the crime which supplied the necessary ingredient of reasonable cause to justify the arrest and search.