Ex parte Roberts , 9 Nev. 44 ( 1873 )

By the Court,

Belknap, J.:

Under a judgment of conviction for prison-breaking, the petitioner was on the 11th day of March, 1872, sentenced to confinement in the State prison for the period of one year, to commence upon the expiration of a term of imprisonment which he was then undergoing for robbery. The trial of the robbery case was had out of term, and upon appeal we decided that the judgment of the district court rendered therein was void, and ordered a new trial. (State v. Roberts, 8 Nev. 239.) The petitioner is confined in the State prison. Application is made for his release by writ of habeas corpus, upon the ground that the judgment of the 11th of March, 1872, is void for uncertainty, since it depends upon an impossible condition, or that the sentence thereunder commenced running upon its rendition, and has now expired by limitation.

In behalf of the State, it is contended that the sentence of the 11th of March, 1872, took effect upon the 7th day of May, 1873 — the date of the reversal of the judgment in the robbery case. The decision of this court did not make that judgment void; it was void ab initio, and the sentence and imprisonment under it were, in legal contemplation, nullities. Either the judgment of the 11th of March commenced to run upon its rendition or it is void for uncertainty, and in neither case is the warden of the State prison entitled to the custody of the prisoner. A new trial having been awarded him, he must be remanded to the custody of the sheriff of Washoe County.

It is so ordered.