Ex Parte Barr.

• Decision Date: 01 November 1916
• Docket Number: No. 3265.,3265.
• Citation: 79 W.Va. 681
• Court: West Virginia Supreme Court
• Parties: Ex Parte Barr.

79 W.Va. 681

Ex Parte Barr.

No. 3265.

Supreme Court of Appeals of West Virginia.

Submitted October 31, 1916.

Decided November 1, 1916.

February 27, 1917.

(Opinion filed February 27, 1917.)

1. Homicide Misdemeanor Imprisonment.

By section 9, chapter 152, and section 4, chapter 144, Code 1913, conviction of an attempt to commit voluntary manslaughter is but a misdemeanor, and a judgment on such verdict of imprisonment in the penitentiary is void. Explaining State v. Ballard, 55 W. Va. 379. (p. 682).

2. Habeas Corpus Void Sentence Imprisonment.

One so convicted and sentenced may be discharged from such illegal and void sentence on writ of habeas corpus, (p. 683).

Habeas corpus by 0. D. Barr.

Petitioner discharged from an illegal sentence and remanded.

A. R. Stallings and J. W. JIarman, for petitioner.

Wayne K. Priit and A. A. Lilly, Attorney General, and J. E. Brown, Assistant Attorney General, for respondent.

Miller, Judge:

On an indictment for an attempt to commit murder petitioner was found guilty of an attempt to commit voluntary manslaughter, upon which verdict the court adjudged that he be confined in the penitentiary for one year, and from which judgment of imprisonment petitioner seeks discharge upon a writ of habeas corpus.

The indictment was found under section 9, chapter 152, Code 1913, providing: "Every person who attempts to commit an offense, but fails to commit or is prevented from committing it, shall, where it is not otherwise provided, be punished as follows: If the offense attempted, be punishable with death, the person making such attempt shall be confined in the penitentiary not less than one nor more than five years. If it be punishable by confinement in the penitentiary, he shall be confined in jail not less than six nor more than twelve months, and fined not exceeding five hundred dollars. If it be punishable by confinement in jail, or fine, he shall be confined in jail not more than six months, or fined not exceeding one hundred dollars."

Section 4, chapter 144, Code 1913, provides, respecting the offense of which petitioner was found guilty, that: "Voluntary manslaughter shall be punishable by confinement in the penitentiary not less than one year nor more than five years.'9

As the offense of voluntary manslaughter is punishable only by confinement in the penitentiary, and not by death, it is quite clear that an attempt to commit voluntary manslaughter is but a misdemeanor, an offense punishable by confinement only in the county jail, and by a fine, as prescribed by the statute.

The statute seems very plain on this question, and there would seem to be no room for doubt, but for an inadvertent expression in State v. BaMard, 55 \Y. Va. 379. That case was disposed of here upon the merits. Defendant as in this case was indicted for an attempt to commit murder, and found guilty of an attempt to commit murder in the second degree. If guilty as found by the jury the offense was a misdemeanor punishable by confinement in the county jail and

by a fine, and the judgment of the court went accordingly.

But on writ of error to this court it was found that under the facts and circumstances proven defendant if the shot had proven fatal would not have been...