Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1892-06-22

Yesterday all the Judges were present.
The opinion on the refusal of writ OF
babeas corpus for DR.. Garrison was read
by Judge Brannon aud coneurred IN by
Judges Lucas, English and Holt. IL
was fled
The following is the full text of the
syllabus:
SYLLABUS.
Involuntary mauslaughter is misde-
meanor under the code Of West virginia,
and punishable, at the discretion OF the
Court. bv fine or Imprisonment In jail,
either or both.
misdCmeanor, where no statute fixes
the punishment is punished oy me or I'M
prisonment in jail, or both, at the discretion
of the Court. -
First-George L Garrison presented his
petition to this court staLlngl IN enecy! ING.
On the 9th Of NAV, 1892, in the Circuit
Court of OHIO county he was, by Jury,
found guilty of involuntary manslaughter
mon an indictment charging him with the
murder of George Baird, and sentenced 10
iDonrisonment for seven months in jail ana
nav a fine of $3.50; and that said Judgment
is utterly and absolutely without authority
of law. either statute or commons there pc
ING no penalty for involuntary manslaugnt-
err and praying TO the Court to award MIN
a writ of habeas corpus to discharge from
such alleged unlawful imprisonment.
The Attorney General demurred 10 the
petition, and objected to the Issuance OF tne
writ. ....,s
Second-The single question presented
IN MS for decision is, whether there is any
punishment under the law OF thls OUaIe IOt
involuntary manslaughter.
r-.--I,,~ t.,-,r Y,,ou clanuhfnr has leeQ lot
centuries degree Of criminal homicide and
an offense under the common law, and
classified as a felony, with benefit OF
clergy. and was punishable by burning In
the hand and forfeiture of goods ana cnat-
tells 4 BLACK Com 1913, and more severely
under the reign of George, the ~. IL
would seem very strange if this grave Of
fence the unlawful killing OF man, after
having continued a punishable offence so
long. should in our day be utterly Tree from
auv punishment, and that this result mas
been brought about by the Legislature.
Let US see if our legislation is open to TINS
reproach. ,...,,;..
the nnnishment for murder in the first de-
gree. murder in the second degree ana
voluntary manslaughter, provides that
Involuntary mauslaughter shall be mis-
demeanor,n as though it presrioes no pun
ishment vet il enumerates 1t among the
degrees of criminal homicide, thus reducing
N from the grade Of felony, but stamping
IL asa misdemeanOr. Another part OF our
code. Sec. /, Chap. l52, says, "Ohences are
either felonies or misdemeanOrs. Sucn
offences as are punishable with death or
confinement in the penitentiary are Ielon-
les; all other offences are misdemeanors.
Tbird-Thus it is clear that involuntary
manslaughter under the code is a INSIDE
meanor, an offence, for mlsdemeanor IS
common law term importing puouc IN
| dictable wrong or offence below the grade
of felony. But though the statute makes
| II a mi sdemanor, no punishment is imposed
uDon this offence by statute; but we must
I NOT thence conclude il is exempt from pun
/ ishment. Wemust then see whether the
cannon law visits it with punishment and
what such punishment is. Here refer
ence to the authorities makes II clear tnat
| involuntary manslaughter is punishable by
a fine or Imprisonment in jail, either or
both. at the discretion Of the Court.
L Russ on Crimes 49, says: THE WORD
| misdemeanOr, its usual acceptatlon, IS APP
pied TO all those crimes and offences IoI
which the law has not provided partlc'
ular name; and they may be punished &C
cording TO the degree OF the onence oy me
or Imprisonment or both.
The great American law writer, Bishop,
in his work on Criminal Law, vol. l., sec.
a. states the correct law thus; Inc
ordinary and appropriate common law
punishment for misdemeanOr IS fine and
| Imprisonment, or either Of them, at the
discretion Of the Court. 10 extends to all
cases in which the law has not provided
! some other specific penalty. For example
when statute forbids or commands
an act of public nature, ou'
is silent as to the punishment, the common
law imposes for disobedlence nne and I'M
prisopmeut. / need not further quote IRON
! the books as all speak to the same effect
Assault and battery, generally punished
bv fine and in grave cases by Imprisonment
also. is a daily instance in our courts OF the
application of this law Know no limits
to the fine and Imprisonment save the con
stitutiOual clauses that cruel and unjust
nunishment shall not be inflicted, and pen
alties shall be proportional TO the charac-
ter and degree Of the offence.
Fifth-Our code in sec. 20 chap l59 en-
acts that ION an Indictment for telonl0uS
homicide, the jury may find the accused, not
guilty Of the felony, but guilty OF lnvoIun
tary mauslaughter' END MIN guilty l0l
what purposel That would be an absurd
itv. The code in sec p chap. l52 provide:
W
ment in Jail and the amount of fine on con
viction of a misdemeanor, unless wher
otherwise provided, as was done IN TINS
In Virginia, party indicted for murder
was found guilty OF involuntary
manslaughter, and discharged, but
the Court at the same term, beine
satisfied of its error in discharg-
ing him fined him $500 and i'm
prisoned him for six months, and upon a
habeas corpus sued out by him the Supreme
Court held that it was error to discharge
him, and proper to impose the fine and I'm
prisonment, the opinion byJudge AndersoE
saving that the verdict was correction toI
a misdemeanor, that involuntary man
Slaughter is an offence against the law pun
ishable by fine and imprisonment. The
Virginia statute was like ours. prices
case 80. Graf. Sl9.)
We cannot sustain the position assumed
in behalf of petitioner, and we refuse tC
award the writ Of ha0eas corpus.
RIED NOTIFIED.