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it could only be reached by proceedings in error. It is not the office of a writ of habeas corpus to correct errors or irregularities of a trial court."

In re Bonner, 151 U. S. 258, 259, 260, 14 Sup. Ct. 323, 326, 327, 38 L. Ed. 149: "When the jury have rendered their verdict, the court has to pronounce the proper judgment upon such verdict, and the law, in prescribing the punishment, either as to the extent, or the mode, or the place of it, should be followed. If the court is authorized to impose imprisonment, and it exceeds the time prescribed by law, the judgment is void for the excess. If the law prescribes a place of imprisonment, the court cannot direct a different place not authorized. It cannot direct imprisonment in a penitentiary, when the law assigns that institution for imprisonment under judgments of a different character. *** A question of some difficulty arises, which has been disposed of in different ways, and that is as to the validity of a judgment which exceeds in its extent the duration of time prescribed by law. With many courts and judges-perhaps with the majority-such judgment is considered valid to the extent to which the law allowed it to be entered, and only void for the excess. * * * The prisoner is ordered to be confined in the penitentiary, where the law does not allow the court to send him for a single hour. To deny the writ of habeas corpus in such a case is a virtual suspension of it, and it should be constantly borne in mind. that the writ was intended as a protection of the citizen from encroachment upon his liberty from any source, equally as well from the unauthorized acts of courts and judges as the unauthorized acts of individuals. * * * The judges of all courts of record are magistrates, and their object should be, not to turn loose upon society persons who have been justly convicted of criminal offenses, but, where the punishment imposed, in the mode, extent, or place of its execution, has exceeded the law, to have it corrected by calling the attention of the court to such excess. We do not perceive any departure from principle or any denial of the petitioner's right in adopting such a course. He complains of the unlawfulness of his place of imprisonment. He is only

Opinion of the Court-Talbot, C. J.

entitled to relief from that unlawful feature, and that he would obtain if opportunity be given to that court for correction in that particular. * ** Some of the state courts have expressed themselves strongly in favor of the adoption of this course, where the defects complained of consist only in the judgment, in its extent, or mode, or place of punishment, the conviction being in all respects regular. In Beale v. Commonwealth, 25 Pa. 11, 22, the Supreme Court of Pennsylvania said: 'The common law embodies in itself sufficient reason and common sense to reject the monstrous doctrine that a prisoner, whose guilt is established, by a regular verdict, is to escape punishment altogether, because the court committed an error in passing the sentence. If this court sanctioned such a rule, it would fail to perform the chief duty for which it was established.'"

This court has decided that the writ of habeas corpus is not intended to take the place of an appeal, writ of error, or certiorari, and cannot be used for the purpose of reviewing errors or irregularities in the proceedings of a court having jurisdiction (Ex parte Smith, 2 Nev. 338; Ex parte Maxwell, 11 Nev. 428; Ex parte Winston, 9 Nev. 71; Ex parte Twohig, 13 Nev. 302; Ex parte Bergman, 18 Nev. 331, 4 Pac. 209); that, if the prisoner is held under a valid commitment, the legality of other commitments need not be considered until his term of service under the good commitment has expired (Ex parte Ryan, 17 Nev. 139, 28 Pac. 1040; Ex parte Ryan, 10 Nev. 261); that under this writ the court will review the question of the constitutionality of an act under which petitioner has been convicted, and if the act is unconstitutional discharge him (Ex parte Rosenblatt, 19 Nev. 439, 14 Pac. 298, 3 Am. St. Rep. 901; Ex parte Boyce, 27 Nev. 299, 75 Pac. 1, 65 L. R. A. 47; Ex parte Kair, 28 Nev. 127, 80 Pac. 463, and cases therein cited); that the petitioner will be released from an order committing him for contempt for an act not committed in the immediate view of the court, when the court was without jurisdiction to make such order by reason of its failure to first require an affidavit and to cite the offender to show cause why he should not be punished (Ex parte Hedden, 29 Nev. 352, 90 Pac. 737); and that the addition of the words

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"at hard labor" in the sentence, although not authorized by statute, would be treated as mere surplusage and in no manner affecting the validity of the judgment (Ex parte Maher, 25 Nev. 424, 62 Pac. 1).

From these cases it is apparent that a few courts have held that, where the sentence upon a valid conviction is excessive or erroneous in part, the whole of the judgment must fall as being without the jurisdiction of the court, and that the convicted criminal must be discharged, while others hold that the sentence may be corrected and the proper punishment inflicted, others that it is void only as to the excessive punishment it orders, others that the erroneous sentence will stand and be enforced against habeas corpus proceedings, and can only be attacked or corrected by the regular methods of appeal or writ of error, and still other courts, among which are notably the Supreme Courts of the United States, of Massachusetts, and Nevada, adhere to the latter rule generally, but allow some elasticity and exceptions for the correction of errors, where the petitioner is restrained under an unconstitutional act, or there is some special urgency and hardship, and the sentence was wholly or partly unauthorized.

If the rule, supported by the decisions upon which petitioner relies, holding that the sentence is void where it specifies a longer period, or different place for the imprisonment, or a heavier fine, than the statute warrants, was adopted by this court, it might lead to grave injustice in the future, for under it, in cases having some omission or mistake in the judgment, criminals sentenced after due conviction of the most heinous crimes would have to be released and turned loose upon the community. If, after conviction of murder in the first degree, the district court should sentence the accused to be hanged in the yard of the county jail under the former law and the practice in this commonwealth, instead of at the state prison, under the more recent statute now in force, the sentence would be void, and the defendant would have to be discharged. Justice ought not to be thwarted by such strained technicalities. We cannot favor such a rule, and we are impelled to join those courts which have determined against it.

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It will be perceived that section 2267, Comp. Laws, is the only one which specifies the place of imprisonment in lieu of the payment of a fine, and that it directs that, whenever a prisoner, upon conviction for any criminal offense, fails to pay the fine, the district court may imprison him in the county jail at the rate of $2 per day until the fine or forfeiture imposed shall have been satisfied. In this connection no distinction is made in regard to the grade of the crime, and there is no limitation to misdemeanors. Under section 4701, the defendant was guilty of a felony, and could have been sentenced directly to the state prison for not less than one nor exceeding two years, or to pay a fine of not less than $1,000 nor exceeding $5,000, or to both. But the language of this section does not provide for confinement in the state prison or elsewhere in lieu of the payment of the fine, and there is nothing in this section or the others which authorized the court to commit the defendant to the state prison upon his failure to pay.

And when we turn to section 2267, the one which does provide for imprisonment as an alternative in lieu of nonpayment, the language fixes the place of confinement as such alternative in all cases, and without making any distinction between felonies and misdemeanors, at the county jail. The fine imposed was authorized, being the minimum amount specified in the statute, and the judgment follows the other provisions in ordering that the defendant be imprisoned at the rate of $2 per day upon his failure to pay the fine. The only error in the sentence was the direction that the defendant work out the fine in the state prison, when the statute specifies the county jail. If he had been fined the maximum of $5,000, instead of $1,000, it would take him about seven years to work out the fine at the rate of $2 per day. Whether it would be better to have a statute, such as exists in some states, providing that where the fine exceeds $500, or a specified amount, or the imprisonment may exceed six months or one year, the confinement in lieu of the payment of a fine shall be in the state prison, is a matter for the legislature, and not for the courts, to regulate. It is our duty to enforce these statutes as we find them.

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The sentence being in accordance with the law and within the discretion vested in the district court as to the amount of the fine and the time of the alternative imprisonment imposed, and being erroneous only as to a matter which is definitely fixed by the statute, the place of confinement, and regarding which no court has any discretion or power to change, it seems unnecessary to have the judgment of the district court modified, even if the mistake may be considered as one apparent upon the record and of the kind usually corrected by courts upon mere suggestion or of their own volition. The direction that the confinement be in the state prison may be rejected as surplusage and of no force or effect, in the face of the statute which controls and fixes the county jail as the place of imprisonment, without it being so designated in the judgment. There was a necessity for the correction of the sentence as ordered by the Supreme Court of the United States in the Bonner case, which does not exist here. When it was held there that imprisonment in the penitentiary was not authorized by the federal statute, it became necessary for the trial court to exercise the discretion vested in it and correct the sentence by designating some one of the different jails it had power to select, no particular one of which was fixed by the statute for the imprisonment, as in this state.

The warden of the state prison is directed to deliver the petitioner to the sheriff of Washoe County upon his appearance and demand at the state prison and the latter is ordered to take the petitioner into custody, and detain him in the county jail of that county for the remainder of the term of imprisonment imposed by the sentence of the district court, unless that part of the fine remaining unsatisfied is sooner paid.