Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1892-06-17

~ tha statutes win disclose no
f-vanvvvhore provided for Involuntary
snrhfer. and have made very
fni examination. All that IS SAID Is
IL shall be a misdemeanor, ana u
to me that when the law was mace
intention was 20 say that there could
u conviction on an Indictment, Tor
y .nur, Rer Of involuntary manslaughter, and
in addition. that u should not be felony, as
it waNs at common law, and was left simply
With the declaration that it should De
isdtemeanor. II there was any penalty,
il mkst be as to the term or crime OF IN
voluntary manslaughter, but none can DC
found. and submit that 1t can't De pos
sibl9 that the common law penalty was ID
tended TO be applied, because at common
law that was a felony which worked
forfeiture Of goods Our statutes provide
Xat al crimes punishable bv death or oy
confinement in the penitenuary are
n felonies. and all punishable by fines or by
3 Imprisonment in Jail are misdemeanors.
5 The division
Z IS UPON THAT IDEA.
! Again. It could hardly be argued that the
common law penalty was intended TO apply,
If il was a misdemeanor, because number
of wears in Jail and a very heavy and eX-
cessive tne might be imposed. Voluntary
Z manslaughter is punishable by lmprlSon-
, ment not exceeding i've years IN the penl-
/ Nenr1afN. anu luAi NQQlu pACN4ANAO sAS ASA~Ns
because some involuntary manslaugnter
punishments would exceed the punish
! / ment for voluntary manSlauahter, ASIDE
from the mere stigma Of confinement IN
the penitentiary"
Col. Arnett proceeded upon this line OF
> argument for quite time, and was nnally
interrupted Oy Judge Holt, who called the
attention Of the Colonel 70 Sec. % OF Chap.
152 of the Code. The Colonel said, IN re-
plv. that he remembered the statute very
well. and reiterated that there was no pen
sltv there expressed for involuntary man
slaughter. Proceeding TO elaborate upon
] this, he was again interrupted by Judge
Lucas, who asked
but what do you do with the statute,
that all crimes punishable by death or i'm
prisonment in the penitentiary are telon-
les and all punishable by confinement IN
I Jail or fine are misdemeanorSt
In reply Col. Arnett read portion OF the
law named, and Judge Lucas again asked:
Isn't that equivalent to saying that
ALL MIsDEMEANoRs
shall be punishable by fine or imprison-
nientP'
Col. Arnett-I think not-not in view of
Sect. - Of Chap. 152. il may be a Felony,
} and vet be punishable by confinement 10
p Jail / don't think the suggestion lndl-
Gated by your Honor is sufficient.
Judge l. 1cas-That says you may pun
ish felony by confinement in Jail, but 1t
/ don't say that you may punish a misoe-
meanOr DIV confinement In the penltenuary.
To this Col. Arnett said he did not think
7 il was TO be implied that punishment fol-
lowed for involuntary manslaughter
} Judge Lucas-What was the punish
} ment for misdemeanor at common law!
Col. Arnett-There were different pun
J ishmeuts in different cases, and some OF
them were very severe but ind no pun
ishment APPLYING TO miSdemeanOrs IN gen.
eral. If there were such, could see how
: | il might be applied in this case. A NUMBER
r of punishments at common law for INSIDE
! meanors were much more severe than those
+. for felOnieS.
{ The Colonel again insisted that there
could be no question Of the right to the
writ if the penalty had been lnIlcted WIN
out authority Of law.
Judge Holt-There are DO felonies except
those enumerated by stutute. Is there q
I common law misdemeanorf
. Col Arnett-I think not.
Judge Lucas-What is assault and bat
I Col. Arnett-There is no trouble about
, that. because il is a specific OffenSe, While
: the term misdemeanOr relates to class.
Judge BrannOn-DO l understand you 10
7 DENY the law as laid down, l think
by Bishop, that where there is no spec;inic
$1,000
! as at common law!
After some further controversy, Judge
: | Lucas held brief consultation with the
y other Judges and then Judge Lucas dellv-
q cred an opinion to the effect that the Court
? held that where no specific penalty was at
! tached,
: TIE PUNISHMENT WAS AS AT COMMON LAW,
g and that in fixing that punishment the trial
t Court had wide discretion. The applica-
d ton was accordingly declined:
5 Col Arnett then enquired what the Court
a understood was the limits bounding the
{ trial Court.
= Judge Holt-The Constitutional provis-
= ion that neither excessive, cruel nor unusual
/ punishments shall be inflicted.
r Col. Arnets-Wi limit under or over
z one year!
t Judge Holt-Without limit.
I Judge Lucas-That would be question
for this Court, like any other.
Judge Holt believe fine OF y, 600 was
. imposed in Mason county.
= Col. Arnett-And have heard OF SEN
> tence Of two years imprisonment.
Judge HOlt-Yes.
The Court then took Attorney General
4 Caldwell's memoranda of authorities, and
I an opinion will be prepared The paper
; prepared by General Caldwell was as fol-
lows
> MEMORANDUM OF AUTHORITIES
l. showing that the Judgment of the trial
g Court in imposing fine and Imprisonment
+ in the county Jail upon the verdict Of the
J, Jury finding the said Garrison guilty OF in
& voluntary manslaughter was justified by
e the law.
+ But il may be asked, what punishment
Z shall be inflicted. The common law az
y fords the proper answer 1t is settled
. principle, that where an offense exists, to
! which no specific punishment has been
: affixed by statute, it is punishable by fine
> and Imprisonment. This is so invariably
! true, that, in all cases, where the Legisla-
: ture prohibits any act without anneXing
u any punishment, the common law considers
y it an indictable Offense, and attaches TO the
; breach the penalty Of fine aud imprison-
y ment." Opinion OF Judge Story in U. ). v.
: Coolidge, Gallison, 492 and 4g3.
n "In all cases where thing is restrained
4 by any statute, the offender shall be fined
Y and imprisoned Bacon's Abridgement,
q Fines and Amercements ID. Vol. g. p. CPS.
: THE word misdemeanor, in its usual &C
; ceptation, is applied 70 all those crimes and
s offenses for which the law has not provid-
ed a particular name; and they may be
! punished, according to the degree of the Of
tense by fine or Imprisonment or BOTH"
/ I Russell on Crimes p AZ.
l. Several other instances might be adj
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