State v. Fairchild

238 P. 922 | Wash. | 1925

Appellant was charged with the crime of murder in the first degree. He was found guilty of manslaughter.

There is only one assignment of error. The judgment provides that the appellant be punished by confinement at hard labor in the state penitentiary for not less than nineteen years and eleven months and not more than twenty years. Appellant's contention is that the minimum term fixed by the judgment is in excess of that provided for by statute.

The assignment must be sustained. The prosecuting attorney confesses it. Rem. Comp. Stat., § 2395 [P.C. § 9000], fixing the punishment for manslaughter provides, among other things, for "imprisonment in the state penitentiary for not more than twenty years" and fixes no minimum term. Rem. Comp. Stat., § 2281 [P.C. § 8716], says, among other things, "where no minimum term of imprisonment is prescribed by law, the court shall fix the same in his discretion at not less than six months nor more than five years."

Under the statutes and the case of State v. Nicholes,135 Wash. 333, 237 P. 706, and In re Blystone, 75 Wash. 286,134 P. 827, therein cited, the judgment herein is reversed and the cause remanded to the superior court for a re-sentence according to the views herein expressed, the judgment or sentence to commence from and bear date of the judgment appealed from. Appellant will recover his costs on the appeal.

TOLMAN, C.J., ASKREN, MACKINTOSH, and MAIN, JJ., concur.