Ex parte Gafford

• Decision Date: 13 June 1899
• Docket Number: 1,562.
• Citation: 57 P. 484,25 Nev. 101
• Parties: Ex parte GAFFORD.
• Court: Nevada Supreme Court

57 P. 484

25 Nev. 101

Ex parte GAFFORD.

No. 1,562.

Supreme Court of Nevada

June 13, 1899

Application by H. A. Gafford for writ of habeas corpus. Writ denied.

Samuel Platt, for petitioner.

W. D Jones, Atty. Gen., for respondent.

BONNIFIELD C.J.

Petitioner alleges that he is illegally restrained of his liberty by the warden of the state prison. It is shown that on the 26th day of January, 1895, the petitioner was duly sentenced by the district court of Washoe county to serve a term of four years in said prison for the crime of an attempt to break jail second, that on the 5th day of May, 1895, the petitioner and one Seward Leeper, upon a joint indictment, trial, and conviction for the crime of an assault with intent to kill were jointly sentenced by said court to serve a term of seven years in said prison, that it was not specified when said second term should begin, and that the petitioner has fully served said first term.

Counsel contends that the second sentence is void for uncertainty, in that it neither provides that the second term shall begin at the expiration of the first, nor at any other specified time. But a sentence which does not specify any time for the imprisonment to commence is not void. The better practice is not to fix the commencement of the term, but merely to state its duration and the place of confinement, where the statute does not otherwise provide. State v. Smith, 10 Nev 106; Bish. New Cr. Proc. 804, and cases cited. Where the defendant is already in execution on a former sentence, and the second sentence does not state that the term is to begin at the expiration of the former, the second will run concurrently with the first, in the absence of a statute providing a different rule. 21 Am. & Eng. Enc. Law, 1075, note 4.

The second contention is that, where two or more defendants are convicted under a joint indictment, they must be separately sentence; that the said second sentence being against said two defendants jointly, and not against each separately, it is void, in that it was not within the jurisdiction of the court. Under the statute, two or more defendants may be jointly indicted and tried for the same public offense; and if the jury cannot agree upon a verdict as to all, they may render a verdict as to those in regard to whom they do agree, on which a judgment shall be entered accordingly, and the case as to the rest may be tried by another jury. Gen. St. §§...