EPHRAIM HANSON, J.
Upon the petition of plaintiff a writ of habeas corpus was issued by order of the Chief Justice to R. E. Davis, warden of the state prison. The writ was made returnable before Hon. O. W. McConkie, one of the judges of the district court of Salt Lake county. Upon the hearing the writ was quashed. The case is now before us on appeal from the order quashing the writ. Plaintiff’s contention that the district court had no authority or jurisdiction to impose an indeterminate sentence upon him for the crime of murder in the second degree, that such sentence is illegal and void, and that the court is now without power to pass a legal sentence upon him fairly presents the propositions presented on this appeal.
On October 13, 1926, in the district court of Salt Lake county, plaintiff herein entered a plea of guilty to the charge of murder in the second degree. Thereupon he was sentenced to “be imprisoned in the state prison of this state for an indeterminate term between ten years and life.” In entering the judgment the clerk of the court made it read: “You, Lee Lim, be confined and imprisoned at hard labor in the state prison in and for the state of Utah for an indeterminate term as provided in section 9062, Compiled Laws Utah 1917.” A certified copy of such entry went into and became a vital part of the commitment under which plaintiff is now being held by the defendant.
During the hearing in the habeas corpus proceeding the district attorney made a motion in writing in the case
(State
v.
Lee Lim
and
S. E. Yang)
wherein the sentence now complained of was imposed upon the petitioner for an order to correct the record of the judgment therein, so as to have the record correspond with the judgment and sentence as actually rendered by the court. The motion was based upon
a certified transcript of the reporter’s notes taken of the proceedings of the court in the case and at the time sentence was pronounced. At the hearing on the motion plaintiff herein was not personally present, but was represented by his present counsel. The motion was granted, and an order was entered therein correcting the minute entry of the judgment. The defendant’s return to the writ was likewise amended.
The action of the court in this connection is assigned as one of the errors on this appeal. Petitioner, however, makes no mention of the assignment in his brief. Neither did he do so at the oral argument. But whether the amendment be allowed or not is immaterial, so far as it affects the results in this case. Therefore we may assume, without deciding, that the court’s action in correcting the judgment entered was legal and proper. We treat the record before us as showing that the plaintiff was imprisoned in the state prison "for an indeterminte term between ten years and life.”
Evidently the sentence was imposed on petitioner under a misapprehension that the law providing for the indeterminate sentence in criminal cases (Comp. Laws Utah 1917, § 9062, as amended by Laws Utah 1919, c. 132) applied to murder in the second degree. That law expressly provides that it shall not apply in cases of “treason or murder in any of the degrees thereof.” The law directing what punishment should have been imposed upon petitioner is found in Comp. Laws Utah 1917, § 8026, which provides, “Every person guilty of murder in the second degree shall be imprisoned at hard labor in the state prison for a term which shall be not less than ten years and which may be for life,” and Comp. Laws Utah 1917, § 7899, which provides, “Whenever in this Code the punishment for a crime is left undetermined between certain limits, the punishment to be inflicted in a particular case must be determined by the court authorized to pass sentence, within such limits as may be prescribed by
this Code.” By the terms of the foregoing sections of the statute it was incumbent upon the court to have imposed a fixed and definite term of imprisonment upon plaintiff. The statute also required the court, in the exercise of its judicial discretion, to have designated the length of the term, within the prescribed limits. This was not done. The sentence is clearly'indefinite.
Habeas corpus lies where the judgment or sentence is fatally defective upon the face of the record, as where it lacks the requisite definiteness and certainty. 29 C. J. p. 54;
Rasmussen
v.
Zundel,
67 Utah 456, 248 P. 135, 137;
Mackelprang
v.
Walker
(Utah) 277 P. 401;
State
v.
Reed,
138 Minn. 465, 163 N. W. 984;
Ex Parte Murray,
43 Cal. 455. This court said in
Rasmussen
v.
Zundel,
supra:
“It is elementary that judgment, especially in criminal cases, should be definite, and ministerial officers should not be left in doubt as to what sentence is to be imposed.”
Where the law prescribes a definite term of imprisonment, or directs a court, in the exercise of its judicial discretion, to fix a definite term within prescribed limits, the judgment of imprisonment, to be valid, must be so definite and certain in its terms that the prisoner and the officer charged with the execution thereof may ascertain therefrom the term of the imprisonment.
State
v.
Reed,
supra;
In re Howard,
72 Kan. 273, 83 P. 1032;
Picket
v.
State,
22 Ohio St. 405;
People
v.
Pirfenbrink,
96 Ill. 68; 16 C. J. p. 1303, § 3078.
It has been held that a sentence is sufficient in this respect if the term of the imprisonment may be ascertained by reading it in connection with the statute under which it is imposed.
Elsner
v.
Shrigley,
80 Iowa 30, 45 N. W. 393;
In re Hamilton,
188 Mich. 499, 154 N. W. 567.
The defendant contends that, as the statute fixes the minimum term at 10' years, the sentence in question is valid to that extent, and that plaintiff is not entitled to the writ
until the 10 years had expired. This contention is without merit. It seems to be based upon the theory that, although the sentence might have been for a term more than 10 years, it could not have been less, and as the term of the sentence is in doubt the prisoner should be given the benefit of the doubt, and the sentence construed as being for 10 years. It seeks to apply the principle applicable in cases where the court in pronouncing sentence does not follow the law, but imposes a sentence of imprisonment for a term less than that which it is by law directed to impose. Such a sentence, by the weight of authority, though erroneous, is not void, and the prisoner will not be released on habeas corpus until he has served the term actually imposed by the sentence. 12 R. C. L. § 27. It overlooks the fatal objection to the sentence in question because of its indefiniteness and uncertainty.
In addition thereto such a contention seems to misapprehend the extent of an indeterminate sentence.
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EPHRAIM HANSON, J.
Upon the petition of plaintiff a writ of habeas corpus was issued by order of the Chief Justice to R. E. Davis, warden of the state prison. The writ was made returnable before Hon. O. W. McConkie, one of the judges of the district court of Salt Lake county. Upon the hearing the writ was quashed. The case is now before us on appeal from the order quashing the writ. Plaintiff’s contention that the district court had no authority or jurisdiction to impose an indeterminate sentence upon him for the crime of murder in the second degree, that such sentence is illegal and void, and that the court is now without power to pass a legal sentence upon him fairly presents the propositions presented on this appeal.
On October 13, 1926, in the district court of Salt Lake county, plaintiff herein entered a plea of guilty to the charge of murder in the second degree. Thereupon he was sentenced to “be imprisoned in the state prison of this state for an indeterminate term between ten years and life.” In entering the judgment the clerk of the court made it read: “You, Lee Lim, be confined and imprisoned at hard labor in the state prison in and for the state of Utah for an indeterminate term as provided in section 9062, Compiled Laws Utah 1917.” A certified copy of such entry went into and became a vital part of the commitment under which plaintiff is now being held by the defendant.
During the hearing in the habeas corpus proceeding the district attorney made a motion in writing in the case
(State
v.
Lee Lim
and
S. E. Yang)
wherein the sentence now complained of was imposed upon the petitioner for an order to correct the record of the judgment therein, so as to have the record correspond with the judgment and sentence as actually rendered by the court. The motion was based upon
a certified transcript of the reporter’s notes taken of the proceedings of the court in the case and at the time sentence was pronounced. At the hearing on the motion plaintiff herein was not personally present, but was represented by his present counsel. The motion was granted, and an order was entered therein correcting the minute entry of the judgment. The defendant’s return to the writ was likewise amended.
The action of the court in this connection is assigned as one of the errors on this appeal. Petitioner, however, makes no mention of the assignment in his brief. Neither did he do so at the oral argument. But whether the amendment be allowed or not is immaterial, so far as it affects the results in this case. Therefore we may assume, without deciding, that the court’s action in correcting the judgment entered was legal and proper. We treat the record before us as showing that the plaintiff was imprisoned in the state prison "for an indeterminte term between ten years and life.”
Evidently the sentence was imposed on petitioner under a misapprehension that the law providing for the indeterminate sentence in criminal cases (Comp. Laws Utah 1917, § 9062, as amended by Laws Utah 1919, c. 132) applied to murder in the second degree. That law expressly provides that it shall not apply in cases of “treason or murder in any of the degrees thereof.” The law directing what punishment should have been imposed upon petitioner is found in Comp. Laws Utah 1917, § 8026, which provides, “Every person guilty of murder in the second degree shall be imprisoned at hard labor in the state prison for a term which shall be not less than ten years and which may be for life,” and Comp. Laws Utah 1917, § 7899, which provides, “Whenever in this Code the punishment for a crime is left undetermined between certain limits, the punishment to be inflicted in a particular case must be determined by the court authorized to pass sentence, within such limits as may be prescribed by
this Code.” By the terms of the foregoing sections of the statute it was incumbent upon the court to have imposed a fixed and definite term of imprisonment upon plaintiff. The statute also required the court, in the exercise of its judicial discretion, to have designated the length of the term, within the prescribed limits. This was not done. The sentence is clearly'indefinite.
Habeas corpus lies where the judgment or sentence is fatally defective upon the face of the record, as where it lacks the requisite definiteness and certainty. 29 C. J. p. 54;
Rasmussen
v.
Zundel,
67 Utah 456, 248 P. 135, 137;
Mackelprang
v.
Walker
(Utah) 277 P. 401;
State
v.
Reed,
138 Minn. 465, 163 N. W. 984;
Ex Parte Murray,
43 Cal. 455. This court said in
Rasmussen
v.
Zundel,
supra:
“It is elementary that judgment, especially in criminal cases, should be definite, and ministerial officers should not be left in doubt as to what sentence is to be imposed.”
Where the law prescribes a definite term of imprisonment, or directs a court, in the exercise of its judicial discretion, to fix a definite term within prescribed limits, the judgment of imprisonment, to be valid, must be so definite and certain in its terms that the prisoner and the officer charged with the execution thereof may ascertain therefrom the term of the imprisonment.
State
v.
Reed,
supra;
In re Howard,
72 Kan. 273, 83 P. 1032;
Picket
v.
State,
22 Ohio St. 405;
People
v.
Pirfenbrink,
96 Ill. 68; 16 C. J. p. 1303, § 3078.
It has been held that a sentence is sufficient in this respect if the term of the imprisonment may be ascertained by reading it in connection with the statute under which it is imposed.
Elsner
v.
Shrigley,
80 Iowa 30, 45 N. W. 393;
In re Hamilton,
188 Mich. 499, 154 N. W. 567.
The defendant contends that, as the statute fixes the minimum term at 10' years, the sentence in question is valid to that extent, and that plaintiff is not entitled to the writ
until the 10 years had expired. This contention is without merit. It seems to be based upon the theory that, although the sentence might have been for a term more than 10 years, it could not have been less, and as the term of the sentence is in doubt the prisoner should be given the benefit of the doubt, and the sentence construed as being for 10 years. It seeks to apply the principle applicable in cases where the court in pronouncing sentence does not follow the law, but imposes a sentence of imprisonment for a term less than that which it is by law directed to impose. Such a sentence, by the weight of authority, though erroneous, is not void, and the prisoner will not be released on habeas corpus until he has served the term actually imposed by the sentence. 12 R. C. L. § 27. It overlooks the fatal objection to the sentence in question because of its indefiniteness and uncertainty.
In addition thereto such a contention seems to misapprehend the extent of an indeterminate sentence. The statute, provides that such a sentence “shall continue in full force and effect until the maximum period has been reached, unless sooner terminated or commuted by the Board of Pardons.” An indeterminate sentence is in law a sentence for the maximum period prescribed by law for the particular offense committed, subject to the provision of the statute that it may be sooner terminated by the Board of Pardons. 29 C. J. p. 57, § 49. The contention that the sentence is valid for 10 years finds no more support in reason than would the contention that the sentence is valid for the life of the prisoner. Both positions are equally untenable. Under the present judgment, neither the prisoner nor the warden can know the duration of the imprisonment imposed thereby. Whether it is for 10 years or for life, or for any other definite period of time, no one can certainly know. As we have seen the court was directed by law to impose a determinate sentence and to fix the length of the term in the exercise of its judicial discretion within the limits prescribed by the statute. There is no escape from the conclusion that the
sentence is so indefinite as to render it absolutely void upon its face. The judgment in its present form, therefore, furnishes no authority for holding the plaintiff in confinement in the state prison.
Although plaintiff is entitled to be discharged from the custody of the warden of the state prison, it does not necessarily follow that he is entitled to be set free. We are confronted with a situation where the validity of the conviction is conceded but where the sentence is void. In such circumstances it was said in
State
v.
Reed,
supra, a case which presents features in all respects essentially the same as the instant case:
“Only the validity of the sentence is challenged; the validity of the conviction is conceded. Where the conviction is valid, but the sentence imposed is void either in whole or in part, the weight of modern authority is to the effect that the prisoner cannot secure an unconditional discharge upon a writ of habeas corpus. * * *
“If the sentence is valid in part and void in part, and the two are not severable, or if it is wholly void because not such as the court was authorized to impose, the prisoner will be remanded for the imposition of a lawful sentence.
State
v.
Miesen,
98 Minn. 19, 106 N. W. 1134, 108 N. W. 513;
State
v.
Langum,
125 Minn. 304, 146 N. W. 1102;
In re Bonner,
151 U. S. 242, 14 S. Ct. 323, 38 L. Ed. 149;
People
v.
Kelly,
97 N. Y. 212;
In re Collins,
51 Mont. 215, 152 P. 40;
In re Howard,
72 Kan. 273, 83 P. 1032;
In re Harris,
68 Vt. 243, 35 A. 55;
State
v.
District Court,
35 Mont. 321, 89 P. 63;
Murphy
v.
Commonwealth,
172 Mass. 264, 52 N. E. 505, 43 L. R. A. 154, 70 Am. St. Rep. 266.”
In that case the relator was remanded to the custody of the warden of the state prison, to be taken before the district court for the imposition of a lawful sentence nunc pro tunc. The practice that seems to have been generally adopted by the courts is thus stated in 29 C. J. at page 175:
“Where the conviction is valid, but the judgment and sentence is unauthorized, the prisoner will be remanded to the custody of the proper officer in order that further proceedings may be had according to law, or the discharge may be delayed for a reasonable time to permit of further proceedings.”
See also,
In re Lewis,
51 Mont. 589, 154 P. 713;
In re Hughes,
54 Mont. 153, 167 P. 650;
In re Harris,
68 Vt. 243, 35 A. 55; and Halderman’s Case, 53 Pa. Super. Ct. 554.
On a hearing and determination of a habeas corpus proceeding the court is directed by law “to dispose of the prisoner as justice may require.” It is thereby invested with a most extensive power in directing the form of judgment to be entered.
In re Bonner,
supra. The judgment of conviction based on petitioner’s plea of guilty being valid, should be enforced and is enforceable by the pronouncement of a proper sentence, unless the court has lost jurisdiction of the cause by lapse of time to now render a valid judgment.
State
v.
Gunter,
16 Ala. App. 293, 77 So. 443.
Whether or not the district court of Salt Lake county, in which the petitioner was originally sentenced, still has jurisdiction of the cause, because of the great lapse of time, not occasioned by any act or proceeding on behalf of the petitioner, at this time to impose a proper sentence upon him is a question to be determined in the original cause wherein the sentence was imposed and one which we do not now decide. ■ In view of that situation and inasmuch as the petitioner has now been confined in the state prison for more than three years we are of the opinion that the order in this case should be that the petitioner be discharged from the custody of the warden of the state prison, but without prejudice to the rights of the state to take any lawful measure to reassume jurisdiction of the petitioner in order that further proceedings may be had against him according to law.
The order of the district court quashing the writ is reversed, and the cause is remanded to the court, with directions to enter an order as indicated.
ELIAS HANSEN, J., concurs.