The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1892-06-22

Judges all concurred. The opinion is
interesting, and very important, as it
settles for the first time in this state
the question whether there exists any
penalty for involuntary manslaughter,
the statutes not prescribing any.
The opinion in full is given below:
SYLLABUS.
Involuntary manslsughter is mis-
demeanor under the Code Of West Vir-
GINA, and punishable at the discretion
Of the court by fine or imprisonment in
Jail, either or both.
A misdemeanor, where no, statute
fixes the punishment, is punished by
fine or imprisonment in jail, or both, at
tho discretion OF the court.
OPINION.
George I. Garrison presented his Pc
tition stating, in effect, that on the 9th
of May, 1892, in the circuit court Of
Ohio county, he was by a jury found
guilty Of involuntary mauslaughter
upon an indictment charging him with
tho murder OF George Baird, and SEN
fenced to imprisonment for seven
months in jail and to pay fine Of $3.50,
and that said judgment is utterly and
absolutely without authority OF law,
either statute or common, there being
no penalty for involuntary manslaught-
er, and praying the court to award him
II writ OF habeas corpus TO discharge him
from such alleged unlawful imprison-
ment
The attorney general demurred to
the petition and objected to the issu-
ance OF the writ.
The single question presented to us
for decision is whether there is any pun
ishment under the law OF this state Tor
involuntary granddaughter.
Involuntary manslaughter has been
for centuries degree oil criminal homt-
eide, and aA otfense under the common
law, and classified Gs q felony, and was
punished by burning in the hand and
forfeiture Of goods and chattels Is Black.
Com, 1881, and more severely under the
statute in the reign OF George Nv.
1t would seem very strange il this
grave offense, the unlawful killing OF
man, after having continued punisha-
BILE otfense 70 long should III DUR day be
utterly free from any punishment, and
that this result has been brought about
by the Legislature, Let US see if our leg
islature is open to this reproach.
Chapter IA of our Code, latter pre-
Bcribing the punishment forSmurder in
the first degree, murder in tho second
degree and voluntary manslaughter,
provides that Involuntary manslaugh-
ter shall be misdemeanor, and though
it prescrbes no punishment, yet it
enumerates it among the4 degrees Of
criminal homicide, thus reducing it
from the grade OF felony, but stamping
it as g misdemeauor. Another part of
our Code, Sec. l, Chapter 152, says:
"Offenses are either felonies or mis-
demeanors. Such ofenses as are pun
ishable with death or confinement in
the penitentiary, are feloniesiall other
offenses are misdemeanors." ~
Thus it is clear that involuntary man
slaughter under our code is a misde-
meapor, an nfiense, for misdemeanor is
common law term importing public.
indictable wrong or offense, below the
grade OF felony. But though the statute
makes it misdemeanor, no punish
ment is imposed upon the ofense by
statute; but we thence conclude
that 1t is exempt from punishment. We
must then see whether the common
law visits it with punishment, and what
such punishment is.
Here reference to the authorities
makes It clear that involuntary man.
slaughter is punishable by fine or i'm
prisonment in JUL, either or both, at
the discretion OF the court.
l Russ. on crimes, 40, says: "The
word misdemcaneE, in its usual ac-
ceptation, is applied to all those crimes
and ofenses for which the law has not
provided particular name, and they
may be punished, according to the de-
gree Of the offense, by fine or imprison-
mcnt, or both"
The great American law writer,
Bishop, in his work on Criminal Law,
Vol. j, Sec $40, states the correct law.
thus:
"The ordinary and appropriate pun.
ishment for misdemeanor is line and
imprisonment, or either OF them, at tho
discretion OF the court. II eXtends to
all cases in which the law has not pro-
vided some othor specific penalty. For
instance, whom q statute torbids or COM
mands an act OF d public nature, but is
silent as to tho punishment, tho COM
mon Law imposes Tor disobodience a hne
and imprisonment"
Ineed not further quote from the
books, rs all speak to the same effect,
authorities cited Assault and bat
terry, generally punished by fine and in
grave cases by imprisonment also, IS
daily instance in our courts OF tho APP
plication OF this law.
know no limit TO tho fine and i'm.
prisonment, save the constitutional
clause that cruel and unusual punish-
ments shall not DO inflicted, and pen
alties shall be proportional to the char
actor and degrees OF the otlense.
Our Code, in Sec. 20, Chapter l6s, en-
acts that ION an Indictment for feion-
Gus homicide, tho jury may find tho
accused not guilty OF tho felony, but
guilty Of involuntary manslau9hter."
Find him guilty Tor what purpose?
Only to turn him loose without
particle Of punishment That would
be IN absurdity. The Code, in Sec. %,
Chapter l50, provides that tho court
shall fix tho term OF punishment in jail
and the amount Of fiue on conviction
OF misdemeanor, unless when other
wise provided, us was done in this
case. az
In Virginia party indicted for muir
der was found guilty Of involuntary
NlHDalanVhtnr nnd iipnhNrua1 hut tho