Ex Parte Maker

*424 By the Court, Massey, J.: Arnold Maher was indicted, tried, and convicted for the commission of the crime of grand larceny, and was thereupon sentenced by the court to imprisonment “in the state prison of the State of Nevada for a term of five years at hard labor.” He is now serving the term of imprisonment imposed, and brings this proceeding for his discharge, basing his right thereto upon the claim that the judgment is absolutely void, for the reason that the court exceeded its jurisdiction in imposing hard labor as a part of the penalty. By the terms of our statute grand larceny is punishable by imprisonment in the state prison for a term of not less than one year nor more than fourteen years. (Comp. L. 1900, secs. 4715, 4802, 4879.) The petitioner urges that, notwithstanding the court had jurisdiction of the subject matter and of his person, it had no power or jurisdiction to render the particular judgment, and cites a large number of authorities in support of this contention. This court has held in Ex Parts Dela, 25 Nev. 346, 60 Pac. 217, in effect, that the judgment of a court upon trial and conviction without indictment is void because in excess of jurisdiction, recognizing to that extent the rule relied upon. A large number of authorities for and against the claim have been cited by counsel. A concise statement of the rule, fully annotated, will be found in 15 Am. & Eng. Enc. Law, 2d ed., p. 170, et seq., and a very full and fair discussion of the reason therefor in Ex Parte Cox (Idaho), 32 Pac. 197. We do not believe we are required to apply the rule invoked to the facts shown, as we have a statute providing for the government of the state prison, by the provisions of which all able-bodied prisoners are required to perform labor, the faithful performance of which inures to their benefit in the commutation of the penalty imposed by the court. (Comp. Laws, secs. 1428, 1429, 1440.) Under the provisions of this act the sentence of the court added nothing to the severity of the punishment and nothing to the infamy of the prisoner. It was harmless, so far as the petitioner is concerned. The words “at hard labor,” under the facts shown and the statutes, should therefore be treated *425 as mere surplusage, and in no manner affecting the validity of the judgment. ■ While, therefore, we cannot discharge the petitioner for the reasons given, yet it is undoubtedly the safe and better practice to strictly limit the penalty to that of the statute prescribing the punishment for each offense. Let the writ be dismissed, and the petitioner remanded to the custody of the warden.