In considering the opinion of the court in the case ofState v. George Wisman, 93 W. Va. 183, in relation to the instant case, I am now inclined to question the correctness of a statement on page 183 of that opinion, which is as follows:
"If the State had failed to prove the greater crime, the jury might have found that the conspiracy had been formed, and while no overt act had been committed in pursuance thereof, yet the defendant could have been guilty of the lesser offense and punished as for a misdemeanor."
The offense of conspiring to do bodily harm to a person is one crime, a misdemeanor; the malicious wounding of a person is another and separate crime, a felony. Under our statute, neither offense is dependent on the other. Therefore, it is improper to combine these two offenses in an indictment, unless the indictment be under the Red Men's act. In the George Wisman case, we held the indictment good as an indictment under the maiming statute. We approve that holding in this case. In order to do so, however, it is necessary to treat as surplusage the charge of conspiracy. It is, therefore, illogical to assert that in case of failure to convict of malicious wounding, the charge of conspiracy, which has been theoretically eliminated from the indictment, can nevertheless *Page 255 be invoked, and the defendant found guilty thereunder.
See generally on this subject, the opinion in the case ofState v. Smith, 61 Me. 385.
Reversed; verdict set aside; new trial awarded.