[No. 742.]

#### Ex Parte THOMAS RYAN.

Habeas Cobpus — Teem of Cotjbt. — Whether in proceedings by *habeas corpus*this Court could declare the conviction of petitioner void, for the reason that he was tried and found guilty at a term of court not authorized by statute, referred to but not decided.

Validity of Conviction, when Immatekial. — Where it appears that petitioner is legally held by the warden of the State prison, under three valid convictions, the legality or illegality of another conviction is immaterial, and need not be considered until his terms of service under the valid convictions have expired.

Pbisoneb — When may be Teied fob Offenses. — A prisoner confined in the State prison may, under the provisions of the act of March 1, 1866 (Stat. 1866, ÍG6), be lawfully tried for an offense during his term of imprisonment for another offense.

Time of Sentence, when CebtAin. — As the time of the expiration of petitioner’s first sentence was certain: *Held,*that the subsequent sentences to commence at the expiration of any and all terms of imprisonment he was then undergoing in the State prison, were equally certain.

*262Habeas Corpus before tbe Supreme Court.

Tbe facts are stated in tbe opinion.

*Robert M. Clarice,*for Petitioner.

I. The judgment of July 15, 1871, having been pronounced and entered out of term, is void. *(State*v. *Roberts,*8 Nev. 289; *Ex parte Roberts,*9 Nev. 44; *Garliclc*v. *Dunn,*42 Ala. 404; *Brumley*v. *State,*20 Ark. 77; *Golusha*v. *Butler, 2*Scam. 227; *Ex parte Osborn,*24 Ark. 479.)

II. Avoid judgment has no binding force, and is an absolute nullity. (Freeman on Judgments, Sec. 117; *Ex parte Roberts,*9 Nev. 44; *Wightman*v. *Karsner,*20 Ala. 446; *Elliot et ál.*v. *Pensol,*1 Peters, 341; *Ex parte Osborn,*24 Ark. 479.)

III. Tbe judgment of July 15, 1871, being a nullity, all subsequent judgments which are dependent upon it, and are to go into effect after it expires, are void for uncertainty.

*J. R. Kittrell, Attorney-General,*for tbe State.

By tbe Court,

Beatty, J.:

Tbe petitioner, Thomas Eyan, seeks, by means of tbe writ of *habeas corpus,*to be discharged from tbe custody of tbe warden of the State prison. He alleges that bis imprisonment is illegal because be is held under a conviction of tbe crime of burglary, obtained at tbe June term of tbe "Washoe district court, for the year 1871, which, in tbe case of Eoberts, was held by this Court to have lapsed by reason of tbe failure of tbe district judge to appear and open tbe term at tbe time prescribed by law. (See *State*v. *Roberts,*8 Nevada, 239.) In that case tbe defendant appealed from tbe judgment, and tbe facts were presented upon a bill of exceptions. Whether in this collateral proceeding by *habeas corpus*we can declare tbe conviction of Eyan invalid for the same reasons that w.ere held sufficient to reverse tbe judg*263ment on tlie appeal of Roberts, is a question upon' wbicli tbe members of tbe Court are divided in opinion, and since we are satisfied that tbe petitioner may be lawfully beld by tbe warden under other convictions set forth in bis return to tbe writ for a term exceeding by several years our respective terms of office, we have concluded to leave tbe question of tbe validity of this particular conviction as *res integra*to our successors.

It appears from tbe -warden’s return that tbe petitioner was first sentenced to a term of four years’ imprisonment on tbe 7th of August, 1869, upon a conviction for burglary. During this term of imprisonment be escaped from tbe penitentiary and committed another burglary. Of this be was convicted July 15, 1871, and be was sentenced thereupon to a term of nine years’ imprisonment. This is tbe conviction alleged to be invalid, and as to which we abstain from expressing any opinion. He was subsequently, September 5, 1871, sentenced to be imprisoned for three years on a conviction for prison-breaking, and, having again escaped from prison, be was convicted a second time of prison-breaking, and sentenced to nine years’ imprisonment for that. All these subsequent convictions took place before tbe expiration of tbe first term of imprisonment under tbe sentence of August 7, 1869, and tbe various terms of imprisonment imposed were made to commence at tbe expiration of any and all terms of imprisonment be was then undergoing in tbe State prison. It will be seen, therefore, that, admitting for tbe sake of tbe argument tbe invalidity of tbe conviction of July, 1871, tbe petitioner may still be beld for a term of sixteen years from August, 1869, less such credits as may be allowed him under tbe statute for bis good conduct. At tbe expiration of that time be will be in a position to require a decision of tbe point here waived.

It was urged by counsel for petitioner on tbe bearing, that a man cannot lawfully be tried for one offense during bis term of imprisonment for another; and that a sentence made by its terms to take effect upon tbe expiration of another sentence pronounced before conviction of tbe second *264offense is void. Bnt these points were abandoned upon his attention being called to the statute. (Stats. 1866, pp. 166-7.) He, however, insisted that all the sentences above enumerated subsequent to the first, the term of which has expired, were void on account of the uncertainty of the times at which they would commence to run. But we think they are sufficiently certain. That is certain which can be made certain. The expiration of the first term is always certain. That makes the beginning, and consequently the end, of the second term equally certain, and so *ad infinitum.*

The prisoner is remanded.