Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1892-05-30
SENTENCE PASSED.

Up to Friday evening counsel for the
defense were entirely disposed to push
with vigor the motion for a new trial OF
the cause, made when the verdict was
brought in. After more mature refec-
ton, however, it was seen that there
was something OF risk attached to
persistence In the determination, and 1t
was finally decided, yesterday morning,
that the motion to set aside the verdict
and the motion in arrest OF Judgment
should be withdrawn, and motion made
to discharge the defendant, upon the
ground that there was no punishment
for the mlsdemeanor upon which there
had been a conviction.
Accordingly, when the Court con-
vened, yesterday morning, counsel for
the defense took this course, first with
drawing the motions heretofore made,
aud then moving for discharge, based
upon the reason above given. Judge
PAUL oyerruled this latter motion, be-
ing OF the opinion that, while there was
no statutory punishment, there was a
punishment at common law, although
he was inclined to the opinion that the
term OF Imprisonment could not exceed
one year. He then passed sentence
upon the prisoner, showing deep feeling
as he did so. He said he had taken into
consideration, in fixing the term OF i'm
prisonment, the fact that the defendant
had already spent fifteen months in
Jail, and would, therefore, make the
term OF Imprisonment seven months.
He then added fine of $3.50 TO this I'M
prisonment. Counsel for the defense
at once took an exception, and will re-
move the case to the Supreme Court,
alleging as reason that there
is no punishment for the de-
PENDANT and that be Is entitled to be
discharged. The appeal will bring this
important and interesting matter
souarely before the Supreme Court, and
will decide a point which has been In
controversy, and regarding which the
legal profession are very much divided.
In talking about the case yesterday,
Col. Arnett, OF counsel for the defense,
said:-
II am firmly convinced that the
Supreme Court will side with US in this
matter, Just as l was convinced that
we had grounds for a new trial OF the
case, had the motion been pressed. We
did not press that motion, because when
we came to consider IL, we recog-
nized that we might be met with
a reversal OF Judge PaulPs opin-
ion as to the plea Of once
In jeopardy, which would have opened
the entire range Of possible verdicts up
again, and given US great amount OF
trouble. Then, there were other
reasons why the case should not be
further prolonged. As TO my reasons
for the belief that there IS no penalty
FOR the offense OF involuntary man
slaughter, they may be briefly given.
The Virginia statute as TO homicide
was taken from the Pennsylvania law.
After Il was adopted In Pennsylvania,
IL was decided, in the case OF Common
wealth V. Gable, Sergeant IL Rawle.
493. that there could be no conviction
for involuntary manslaughter on an in
dictment for murder, because murder
was a felony, and involuntary man
slaughter q mlsuelueduOI' Alt0 otoVo
OF Virginia adopting it, the Supreme
Court, in Wirt's case, Grattan, de-
cided that there could be no convic-
ton for involuntary manslaughter.
Then, In 1882, the Legislature Of West
Virginia provided that in an indictment
for murder there might be a conviction
for involuntary manslaughter, but there
was q total failure to add a penalty.
Manslaughter is a mere designation OF
a certain class OF crime, and there can
be no penalty al common law or by
statute, unless specified as to particu-
lar offense. 1t was stated this morning
in the IRtelligencer that Judge Melvin
had decided case against the prisoner.
He never did so, and In the case OF
Hanley, at New Cumberland, the sem
tence imposed by Judge Campbell was
OF = conditional nature, as was stated by
the REGISTER to-day. So In the case Of
Kendry. Both these prisoners were re-
leased by Judge PAUL, through my ef-
forts, Judge Campbell having become
sick before he had made decision as to
his conclusions