REPORTS OF CASES DETERMINED IN THE SUPREME COURT OF THE STATE OF NEVADA JULY TERM, 1907. [No. 1721.] EX PARTE S. TANI. 1. CRIMINAL LAW-SENTENCE-ERRONEOUS IN PART-EFFECT. On conviction of a felony, the sentence imposed was within the discretion vested in the district court as to the amount of the fine and the time of alternative imprisonment in the event that the fine was not paid, and was erroneous only in that it declared that such alternative imprisonment should be in the state prison, whereas, under the express provisions of Comp. Laws, 2667, it should have declared that the same should be in the county jail. Held, that, in habeas corpus proceedings, such direction as to the place of imprisonment might be rejected as surplusage, and did not vitiate the entire sentence. APPLICATION by S. Tani for a writ of habeas corpus against the Warden of the State Prison. Denied, and the warden of the state prison directed to deliver petitioner to the sheriff of Washoe County, Nevada, to be by him detained in the county jail for the remainder of the term of imprisonment imposed by his sentence, unless the part of the fine remaining unsatisfied be sooner paid. The facts sufficiently appear in the opinion. Benj. Curler, for Petitioner: I. We contend in this case that the court exceeded its jurisdiction in imprisoning the petitioner in the state prison VOL. XXIX-25 Argument for Petitioner. for five hundred days, and that there is no provision of law authorizing the court to imprison the petitioner in the state prison, for five hundred days, or any other number of days. The court had, under Comp. Laws, 4701, jurisdiction to impose a fine upon the petitioner of one thousand dollars, but imprisonment for five hundred days is illegal and void. Comp. Laws, 2267, is as follows: "Whenever any prisoner, under conviction for any criminal offense, shall be confined in jail for any inability to pay any fine, forfeiture, or costs, or to procure sureties, the district court, upon satisfactory evidence of such inability, may, in lieu thereof, confine such person in the county jail, at the rate of two dollars per day, until the fine, forfeiture, or costs so imposed shall have been satisfied." Under this section the court certainly received satisfactory evidence, after the writ of execution had been returned and satisfied, that the petitioner was unable to pay his fine, and the most that he could do would be to confine the petitioner in the county jail at the rate of two dollars per day until the fine was satisfied. If the judgment of the court is not warranted and authorized by law, or that portion of it, which confines him in the penitentiary, exceeds the jurisdiction of the court, then the relator's imprisonment is illegal, and he has a right to be discharged on the writ of habeas corpus. (People v. Liscomb, 60 N. Y. 559, and authorities cited.) When a person is held under a judgment of a court made without authority of law, the proper tribunal, will, upon habeas corpus, look into the records so far as to ascertain this fact; and if it be found to be so, will discharge the prisoner. (Ex parte Lange, 18 Wall. 163.) The judgment of the court in confining the relator in the state prison is void, because in excess of that which by law the court had power to make. (Bigelow v. Forrest, 9 Wall. 339.) On application for a writ of habeas corpus the judgment under which the prisoner is held is a unit, and if one portion of it is without the jurisdiction of the court which made it, the whole is void. (Ex parte Kelly, 65 Cal. 154; Ex parte Bernert, 62 Cal. 524.) II. Where an offender is sentenced for a longer term of imprisonment than is prescribed for the particular offense, Opinion of the Court-Talbot, C. J. or where he is condemned to pay a fine and be imprisoned for an offense which is punishable by fine or imprisonment, or where the sentence is severable and a part of it is of the nature prescribed by law and the other part is not, as where an offender is sentenced to imprisonment in the penitentiary and to pay a fine, when the punishment authorized by law for the particular offense is a fine and imprisonment in the county jail, the authorities hold that an excessive sentence is invalid in toto, and a discharge on habeas corpus has been granted on that ground. (15 Am. & Eng. Ency. Law, 2d ed. 172; Ex parte Page, 49 Mo. 291.) The above case was decided under a statute providing that when a prisoner is brought up on habeas corpus, if it appears that he is in custody by virtue of process of any court or judicial officer, he can be discharged only in one of the following cases: First-Where the jurisdiction of such court or officer has been exceeded, either as to matter, place, sum, or person. *** SixthWhere the process is not authorized by any judgment, order, or decree, nor by any provision of law. (See, also, Ex parte Mooney, 26 W. Va. 36; Ex parte Cox, 32 Pac. 197.) R. C. Stoddard, Attorney-General, for Respondent: I. The court had jurisdiction to impose said fine, and in default of the satisfaction thereof to order that defendant "be imprisoned in the state prison of the State of Nevada, for the period of five hundred days, or for one day for each and every two dollars of the said fine not satisfied." (Comp. Laws, 3988, 4413, 4418, 4646, 4701.) II. Even if, as petitioner contends, he should have been sentenced to the county jail, he is not entitled to his release on habeas corpus, as the place of confinement is no part of the judgment, and, if the conviction is valid, he could be remanded to the custody of the trial court to be dealt with according to law. (In re Harris, 35 Atl. 55; People v. Kelly, 97 N. Y. 252; Ex parte Symons, 62 Ala. 416; Koepe v. Hill, 87 Am. St. Rep. 192.) By the Court, TALBOT, C. J.: Defendant was indicted for the crime of assault with intent to kill. He entered a plea of guilty of assault with a deadly |