In re Alexander McNeil
| Decision Date | 09 January 1904 |
| Docket Number | 13,788 |
| Parties | In re ALEXANDER MCNEIL, Petitioner |
| Court | Kansas Supreme Court |
Decided January, 1904.
Original proceeding in habeas corpus.
SYLLABUS BY THE COURT.
ASSAULT AND BATTERY--Illegal Fine--Right to be Discharged on Habeas Corpus. The punishment for assault and battery is fixed by section 2028, General Statutes of 1901, at a fine not to exceed $ 500 or by imprisonment not exceeding one year. The petitioner was convicted of a violation of said section of the statute and sentenced to imprisonment in the county jail for a term of three months and to pay a fine of one dollar, and to stand committed until the fine and costs were paid. He paid the fine. Held, that the prisoner is entitled to be discharged on habeas corpus.
Clark A. Smith, for petitioner.
F. J Knight, and Park B. Pulsifer, for respondent.
OPINION
The petitioner was convicted in the district court of Mitchell county of assault and battery. He was sentenced to imprisonment in the county jail for a term of three months and to pay a fine of one dollar, and to stand committed until the fine and costs were paid. The penalty for the offense of assault and battery is found in section 2028, General Statutes of 1901. That section reads:
"Any person who shall assault, or beat, or wound another under such circumstances as not to constitute any other offense herein defined, shall upon conviction thereof be fined in a sum not exceeding five hundred dollars, or by imprisonment not exceeding one year."
The prisoner paid the fine assessed against him and has sued out this writ of habeas corpus, seeking his discharge on the ground that the court was without power to assess a punishment of fine and imprisonment upon him, when the statute authorizes either one or the other, and not both. We think the court was without power to inflict the punishment imposed.
In Ex parte Lange, 85 U.S. 163, 18 Wall. 163, 21 L.Ed. 872, the prisoner was convicted of appropriating to his own use mail-bags of a value of less than twenty dollars. The punishment for the offense under the statutes of the United States was imprisonment for not more than one year or a fine of not less than $ 10 nor more than $ 200. The petitioner was sentenced to one year's imprisonment and to pay $ 200 fine. In an exhaustive opinion delivered by Mr. Justice Miller, the prisoner was discharged.
Touching the question of the power of this court to consider the illegality of the sentence raised by counsel for the respondent, we quote from the case cited, at page 176:
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