dissenting:
Defendant was indicted for a felony. He was convicted of assault and battery and sentenced to a term in jail. The *373felony charged in the indictment included the lesser offense of which defendant was convicted. The indictment was found after the expiration of one year from the date of the commission of the offense. The only question before the Court was whether the included offense, the misdemeanor of which defendant was convicted, was barred by the limitation found in Code, 61-11-9. The applicable provision of that section reads: “* * * A prosecution for a misdemeanor shall be commenced within one year after the offense was committed * * *”. Notice that the wording of the statute bars only a “prosecution” for a misdemeanor, not a “prosecution” for a felony, even though the felony charged may include lesser offenses.
Another statute pertinent, if not controlling, Code, 62-3-14, reads: “If a person indicted for a felony be by the jury acquitted of part and convicted of part of the offense charged, he shall be sentenced by the court for such part as he is so convicted of, if the same be substantially charged in the indictment, whether it be felony or misdemeanor.” The two statutory provisions deal with the same subject matter and should be read together. The first provides a limitation as to misdemeanors prosecuted as such. The other permits conviction of an included offense and requires that a defendant convicted of an included offense “be sentenced by the court for such part as he is so convicted of”, without regard to any limitation.
The majority opinion admits, as it must, that the offense for which defendant was convicted was included in the felony charge contained in the indictment. See State v. Wisman, 93 W. Va. 183, 186, 116 S. E. 698; State v. Tomlin, 86 W. Va. 300, 304, 103 S. E. 110; State v. Vineyard, 85 W. Va. 293, 101 S. E. 440. The majority opinion also admits, as I understand it, that the return of the felony indictment constituted the initiation of a felony “prosecution”. See State v. Smith, 130 W. Va. 183, 187, 43 S. E. 2d 802. These facts being clear, is it not also clear that Code, 61-11-9, has no controlling application where the offense charged is an included offense in a felony prosecution?
*374As above pointed out, defendant was “a person indicted for a felony”, within the meaning of Code, 62-3-14. He was also “by the jury acquitted of part and convicted of part of the offense charged” in the indictment. These facts being clearly established, it seems incontrovertible that he falls within the application of that section. This being true, there appears no justification for ignoring the mandatory language of the section which requires that “he shall be sentenced by the court for such part as he is so convicted of * * * whether it be felony or misdemeanor”. The majority opinion would take refuge behind some theory of pleading, but the language “he shall be sentenced by the court” can not be viewed or considered as pertaining to matters of pleading.
The Legislature, in the enactment of legislation whereby the limitation relating to misdemeanor prosecutions should not be, applicable to included misdemeanors, probably had in mind a most useful purpose. Those who are charged with the duty and responsibility of apprehending and convicting criminals, as is well known, must often deal with sly, subtle, insidious persons, astute in the evasion of conviction and punishment of crimes. For many reasons, it may be found impossible or inadvisable to request of a grand jury indictments within one year. It may be, and no doubt often is, to the advantage of the public to delay such requests. Hasty indictments are not always justified. These facts appear to be made apparent by the absence of any limitation as to prosecutions of the more serious offenses. Under the majority holding, however, indictments for the more serious offenses must now be returned within one year, or the State must lose the right to convict and punish as to any included misdemeanors.
An examination of the cases cited in the majority opinion, as establishing a majority rule to the contrary, will disclose that in not one of them was the decision based on any one or more statutory provisions to the same effect as our two statutes herein quoted. The rule which: *375I believe this Court should follow, especially in view of our statutes, is stated in Jinks v. State, 114 Ga. 430, 40 S. E. 320, as follows: “1. The statute of limitations applicable in the trial of a criminal case is that which relates to the offense charged in the indictment, and not that which relates to any minor offense of which the accused might, be convicted under the indictment.” In the opinion in that case the Court stated: “* * * It is settled law in this state that the statute of limitations applicable in a criminal case is that which relates to the offense charged in the indictment, and not to any minor offense included therein of which the accused might be found guilty. Reynolds v. State, 1 Ga. 222; Clark v. State, 12 Ga. 350; Wall v. State, 75 Ga. 474 * * See Sikes v. State, 20 Ga. App. 80, 92 S. E. 553.
The majority seems to have founded its conclusion, in part, on a fear that sometime, somewhere, some prosecuting attorney would be able to obtain an indictment for a felony for the purpose of evading the statute of limitations applicable to a misdemeanor. Such fear, even if well founded, which I believe it not to be, can be of no help in determining the intent of the Legislature or in applying the plain language used in the two applicable statutes. Such fear might be a matter to be considered by the Legislature, but not by the courts. Is it not an entirely sufficient answer to any such argument to say that prosecuting attorneys, grand jurors and petit jurors perform their duties under oath and are presumed to act lawfully in the performance of such duties? Moreover, should such an indictment be so improperly returned, there are existing ample safeguards for the protection of defendants.
Being of the view that the misdemeanor of which defendant was found guilty and which was an offense included in the felony prosecution, was not barred, I respectfully dissent. I am authorized to say that Judge Haymond concurs in this dissent. We would affirm the judgment of conviction.