State ex rel. Soto v. Adams, 12064
| Decision Date | 05 August 1960 |
| Docket Number | No. 12064,12064 |
| Citation | 145 W.Va. 591,115 S.E.2d 497 |
| Court | West Virginia Supreme Court |
| Parties | STATE ex rel. John SOTO v. D. E. ADAMS, Warden, West Virginia Penitentiary. |
Syllabus by the Court.
1. 'A writ of habeas corpus ad subjiciendum will lie to effect the release of one imprisoned in the State Penitentiary without authority of law.' Pt. 1, Syl., State ex rel. Vandal v. Adams, Warden, etc., W.Va. .
2. 'An indictment which charges that the defendant '* * * with certain dangerous weapons called a knife and pistol * * * did make an assault, with intent good and lawful currency of the United States of America of the money, goods and chattels of him * * * to steal take and rob * * *.', which omits to charge that such acts were done feloniously, is insufficient to charge the offense, or the attempt to commit the offense, of robbery within the provisions of Code, 61-2-12, as amended, and a sentence, judgment and commitment to a term of imprisonment prescribed for the offense, or the attempt to commit the offense, of robbery based upon such idictment are void.' Pt. 2, Syl., State ex rel. Vandal v. Adams, Warden, etc., W.Va. .
Frank L. Taylor, Jr., Charleston, for relator.
W. W. Barron, Atty. Gen., George H. Mitchell, Asst. Atty. Gen., for respondent.
BROWNING, President.
The petitioner in the instant proceeding is one of those persons jointly indicted with Robert Vandal, see State ex rel. Vandal v. Adams, Warden, etc., W.Va., 115 S.E.2d 489, and this proceeding is controlled by the decision in that case.
Prisoner discharged.
CALHOUN, J., dissents for the reasons stated in a dissenting note filed in the companion case of State ex rel. Vandal v. Adams, Warden, 115 S.E.2d 492.
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