
    [No. 19399.
    Department Two.
    September 3, 1925.]
    The State of Washington, Respondent, v. Charles Fairchild, Appellant.
      
    
    Criminal Law (458) — Punishment—Excessive Sentence. One convicted of manslaughter cannot be sentenced to imprisonment for a minimum term of more than five years, under Rem. Comp. Stat.', § 2395, fixing a maximum of twenty years, without any minimum for manslaughter, and Id., § 2281, providing a minimum of not less than six months nor more than five years where no minimum has been prescribed by law.
    Appeal from a judgment of the superior court for King county, Hall, J., entered February 7, 1925, upon a trial and conviction of manslaughter.
    Reversed.
    
      John F. Dore, for appellant.
    
      Ewing D. Colvin and Allen Peyser, for respondent.
    
      
       Reported in 238 Pac. 922.
    
   Mitchell, J.

— 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 Ms 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 Pac. 706, and In re Blystone, 75 Wash. 286, 134 Pac. 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, O. J., Askren, Mackintosh, and Main, JJ., concur.  