State v. Summers

9 Nev. 269

Opinion

By the Court,

Whitman, C. J.:

The only point in this appeal is that the judgment is void, because therein a date is fixed for the execution of a sentence of death, more than sixty days from the time of judgment, contrary to the criminal statute. It is needless to inquire what effect, if any, such a mistake would have upon a judgment which might properly include such an order; as by the statute of the State of Nevada it is the warrant and not the judgment which fixes the time for executing sentence of death. Stats. 1861, 484, Sec. 454. People v. Bonilla, 38 Cal. 699. So it follows that the language objected to in the judgment was mere surplusage, which may and should be disregarded, and that the court may at any time issue its warrant in due form of law. Stats. 1861, 485, Secs. 466-467. People v. Bonilla, 38 Cal. 699.

Let the judgment be modified by striking therefrom all matter relating to the time of execution; and let a remittitur issue immediately.