In Re Williams

THE COURT.

In 1929 the petitioner was convicted of the crime of murder in the second degree in the Superior Court of Riverside County. Following his conviction the court pronounced judgment, and in so doing used the following language: “Therefore, it will be the judgment and order of the court that you be punished by twenty years’ imprisonment in the States Prison, and that you be delivered by the Sheriff of Riverside County to the custody of the Warden of the States Prison at Folsom,' there to be dealt with as required by law.”

The petitioner was received at Folsom on the eleventh day of July, 1929. On December 27, 1933, the petitioner was brought before the board of prison terms and paroles, and thereupon said board, by order duly made and entered, fixed

[352]

the term for which the petitioner should be confined in the state prison at Folsom, at thirty years.

The petitioner contends that the judgment of the Superior Court of the County of Riverside is void, and that he is entitled to a writ of

habeas corpus.

The first paragraph of section 1168 of the Penal Code reads: “Every person convicted of a public offense, for which imprisonment in any reformatory or state prison is now prescribed by law shall, unless such convicted person be placed on probation, a new trial granted, or the imposing of sentence suspended, be sentenced to be imprisoned in a state prison, but the court in imposing the sentence shall not fix the term or duration of the period of imprisonment. ’ ’ The section then provides for the manner in which sentence shall be imposed, Statutes 1931, page 1061, now empowering the board of prison terms and paroles to fix the term for which any prisoner sentenced to a state prison shall be confined. The trial court was without jurisdiction to fix the term. It had jurisdiction, however, to sentence the petitioner to the state prison at Folsom, there to be dealt with as required by law.

Having no power to fix the term of confinement, that portion of the judgment and sentence we think should be considered as mere surplusage, and full effect and force given to that portion of the sentence within the jurisdiction of the superior court to pronounce, to wit: To order “that you be delivered by the Sheriff of Riverside County to the custody of the Warden of the States Prison at Folsom, there to be dealt with as required by law”. The law specifies, as we have said, what proceedings shall thereafter be taken, and the body authorized to fix the term of imprisonment.