STRAUP, J.

I dissent. The defendant Lee Lim and S.E. Yang in the district court by information were charged with the crime of murder in the first degree. The case came on for trial May 24, 1926. On June 4 the case was submitted to the jury. After deliberating on their verdict for 36 hours, they reported they were unable to agree, and were discharged. The case came on for retrial October 13. At that time the district attorney by leave of court dismissed the case as to Yang, and amended the information as to Lee Lim, charging him with murder in the second degree. Lim pleaded guilty thereto, and waived time for sentence. Thereupon the judgment and sentence of the court was rendered that he be "confined and imprisoned at hard labor in the state prison in and for the State of Utah for an indeterminate term as provided by section 9064, Comp. Laws Utah 1917, and the Sheriff of Salt Lake County is charged with the execution of this order." A commitment in language of the judgment was issued accordingly, and in pursuance thereof Lim on October 16, 1926, was by the sheriff delivered to the warden of the state prison in execution of the judgment. More than three years thereafter Lim, on habeas corpus proceedings, was by this court on December 29, 1929, released and discharged from imprisonment and from the custody of the warden upon the ground that the court was unauthorized to render a judgment of an indeterminate sentence, and that the judgment thus was void. When granting the discharge from imprisonment and from custody of the warden, it was urged that we then remand the prisoner to the district court, with direction that a proper and valid judgment be there rendered and entered. We declined to do so, and refrained from deciding whether the district court then had or had not jurisdiction to further proceed in the cause, or to render a new or another judgment. Lee Lim v. Davis, 75 Utah 245, 284 P. 323. After the prisoner was discharged and released, he on February 1, 1930, on a new warrant of arrest, was brought before the district court, and, over his objection, and upon the court's refusal to permit him to withdraw his plea of guilty, the court, on Februare 15, 1930, without any further proceedings had, rendered a judgment that the prisoner be confined in the state prison for a term of ten years, the minimum period for murder in the second degree, the term to relate back and begin October 13, 1926, at which time the prisoner on the first judgment was delivered to the warden. The court thereupon issued a certificate of probable cause for an appeal, stayed the execution of the judgment, and admitted the prisoner to bail pending the appeal in the sum of $500.

The crucial question thus to be determined is as to whether the district court, three years and four months after the first judgment was pronounced, and after it partly had been executed, still had jurisdiction of the cause and without further proceedings had therein to render the second judgment. In determining that, it is not the question of whether it is or is not deemed "shocking" if it be held the district court had not jurisdiction to render a further or another judgment, for jurisdiction of the court is not dependent upon the extent to which the conscience of the court is or may be shocked. It is dependent upon the power and authority conferred upon the court by law, by the Constitution and the statute to render a judgment. If no such power or authority then existed, none may be assumed or granted on the theory that, if jurisdiction is not exercised, the accused in a particular case may go without sufficient punishment. In safeguarding the rights of the state, those of the accused must not be overlooked, and must also be protected. Jurisdiction to try and punish for crime cannot be acquired otherwise than in the mode prescribed by law, and, if it is not so acquired, any judgment rendered is a nullity. 16 C.J. 176. That the court when the first judgment was rendered had jurisdiction of subject-matter and of the person, and then had jurisdiction of the cause, is undoubted. The pertinent question is, Had the court still jurisdiction and custody of the cause and of the defendant when the second judgment was rendered? I think no one speaking within the law is bold enough to assert that, because a court once had jurisdiction of a cause, it for all time thereafter retained jurisdiction over it. There must be some time after the cause is finally disposed of when the court loses jurisdiction of the cause, except for motions for a new trial, postponement of sentence, arrest of judgment, or for other proceedings in the cause as may by statute be provided. Hence the general rule is that a court having obtained jurisdiction retains it until the final disposition of the cause; but, after final judgment has been rendered and the parties dismissed and the term of court has ended, the jurisdiction of the court is exhausted, and it can take no further proceedings in the cause, except with respect to the enforcement of the judgment, or, in a proper case, its correction or vacation. 15 C.J. 825. Again, it is well recognized that generally judgments are required to be rendered and entered in the term at which the verdict is rendered or the decision made, and cannot regularly be rendered after the term, unless rendition of the judgment is carried over to a succeeding term by proper record entries necessary to preserve jurisdiction of the case. 34 C.J. 65.

Our statute, Comp. Laws Utah 1917, § 8547, provides that the procedure in criminal cases in the courts of this state shall be as prescribed in the Code of Criminal Procedure; by section 9041, if the judgment is not arrested or a new trial granted, the court must appoint a time for pronouncing judgment which shall be not less than two days and not more than ten days after verdict, at which appointed time, section 9051, if no sufficient cause appears why judgment should not be pronounced, "it must thereupon be rendered." The statute in this particular is unlike the statute of California, and hence the cited California cases are not applicable. Under the statute, no one may successfully contend that the court at all events and under all circumstances is bound to appoint a time for pronouncing judgment not more than ten days after verdict. If a motion for a new trial or arrest of judgment or other proceeding is pending in the cause, the court of course is not required to fix a time for pronouncing judgment until such motion or other proceeding is disposed of. And thereafter and at the time fixed for pronouncing sentence, if sufficient cause is made to appear why judgment should not then be pronounced, the sentence may be postponed until such matter is disposed of. It is readily conceivable that in some instances a motion or other proceeding in the cause may carry the case over to a term subsequent to the term at which the verdict was rendered, in which case the court has not lost jurisdiction after such motion or proceeding has been disposed of to fix a time and pronounce judgment at a subsequent term. But in such case, after all motions and proceedings in the cause subsequent to verdict have been disposed of and denied, and nothing further made to appear why judgment should not be pronounced, the court is then required to fix a time and pronounce a judgment, if not within ten days after such proceedings have ended, at least within a reasonable time thereafter. Though it be assumed that the statute in such particular is directory, or where no judgment is rendered within the term (we here have a system of terms of courts) in which the verdict was rendered or decision made, and no proceedings had to stay or prevent the rendition of a judgment, and that it may thereafter within a reasonable time be rendered at a subsequent term, yet it may not successfully be contended that more than three years thereafter is a reasonable time, when, as here, each year terms of court have come and gone, terms of judges ended, and judges in office when the first judgment was rendered succeeded by others when the second judgment was rendered. After the first judgment was rendered, there were no motions or proceedings of any kind to stay, arrest, or prevent the rendition of a judgment. That such judgment as so rendered was final and the case finally disposed of may not well be doubted. In obedience thereto, the defendant was delivered to the warden in execution of the judgment and a return of the commitment filed by the sheriff that the judgment had been executed by him as by the commitment commanded. Our Constitution and statute permit an appeal only from a final judgment. Had an appeal been taken from the first judgment, no one, I think, would have contended that the judgment was not final, or that the cause was still pending in the district court undisposed of, and that thus no appeal from judgment would lie. Hence it is clear that, when the first judgment was rendered, the court rendered a final judgment and finally disposed of the case. In such respect the court fully exhausted its jurisdiction.

But it is said the first judgment was void. So it was. We so held in the habeas corpus proceeding. Still that did not affect the finality of the judgment or as finally disposing of the case. Of course, the judgment being void upon its face, it was a nullity, and subject to attack directly or collaterally whenever and wherever brought in question and was subject to be expunged and vacated at any time within or after the term in which it was rendered, in some instances on motion of the party or parties injured by it, or even on the court's own motion, or on suit brought for such purpose. 3 Bancroft Code Practice and Remedies, p. 2439; 34 C.J. 17; 1 Freeman on Judgments (5th Ed.) 443. All that is readily conceded. But the pertinent question is as to whether the court, regardless of time, whether 3, 10, 20, or more years after the void judgment was rendered, not only could expunge the judgment from the records of the court, but also still had jurisdiction and custody of the cause and of the parties to render a new or another judgment in such cause. I will concede that by some courts on habeas corpus proceedings, where a defendant was imprisoned under a void judgment and was discharged and released from imprisonment, he was remanded to the court in which the judgment was rendered, with directions to pronounce and enter a valid judgment, in some instances, regardless of the time intervening between the two judgments, but in most such cases it merely was assumed, without considering the question, that the court in which the first judgment was rendered still had custody and jurisdiction of the cause and of the parties to render a new and another judgment. The reason given by some of such courts, the cases in which such views are expressed being cited in the prevailing opinion, is, that in a collateral proceeding, wherein the prisoner or one illegally imprisoned or restrained on a void judgment is released, it in legal effect is the same as setting aside a judgment on direct appeal or writ of error in the cause in which the judgment was rendered. When considered and analyzed, I think the distinction of the two proceedings is manifest. In case of a direct appeal or writ of error, the cause itself from the court in which the void judgment was rendered is transferred to the appellate or reviewing court, thereby giving that court jurisdiction of the cause. When in such case the judgment is held void or modified or whatever order may be made therein by the appellate or reviewing court, the ruling is made on the record of the proceedings in the cause itself; and, when on remittitur the case is remanded to the lower court in which the void judgment was rendered, with directions, the lower court is again vested with jurisdiction to proceed in the cause in accordance with the remittitur. Hence, in such case, no matter what time may have elapsed from the rendition of the judgment in the court below until it was annulled or vacated by the appellate court and the case remanded to the lower court, that court is again vested with jurisdiction of the case to proceed in accordance with the remittitur. In the prevailing opinion, it is said that, had a direct appeal been taken from the judgment which on appeal had been declared void and the case remanded to the court below, with directions to render another and a valid judgment or otherwise to proceed in accordance with the remittitur, the lower court would have had jurisdiction to so proceed, and therefore it is assumed that the district court likewise had jurisdiction of the cause and of the parties when more than three years after the void judgment was rendered and partly executed it on habeas corpus proceedings was declared void. The conclusion does not follow for the reason and as is well stated by Justice Van Syckel in the case of State v. Gray, 37 N.J.L. 368, that in habeas corpus proceedings the writ "does not bring up the record of the proceedings and judgment below for review; it operates only on the body of the defendant and raises the single question whether he is legally in custody"; that the court can simply declare that by virtue of the illegal sentence the defendant cannot longer be restrained of his liberty and that the void judgment is no warrant for restraining the defendant in custody; and, inasmuch as the cause itself and the record of its proceedings in which the judgment was rendered is not before the court granting the writ, that court may not pass on or render a new judgment, nor direct the court below to do so, nor remand the prisoner to the court below when the term at which the void judgment was entered had ended or the judgment partly executed. Such views are also supported by the cases of State v. Addy, 43 N.J.L. 113, 39 Am. Rep. 547; Ex parte Lange, 18 Wall. 163, 21 L.Ed. 872; Com. v. Foster, 122 Mass. 317, 23 Am. Rep. 326, and cases hereinafter cited.

Such also in effect is the rule stated by Works on Courts and Their Jurisdiction, p. 121, where he says:

"Where a judgment is void on its face, the court has inherent power to set it aside, upon a proper showing, and the statutes authorizing a motion to vacate within a limited time are usually held not to affect this power. But the question sometimes arises whether, after a long space of time has intervened, the judgment can be vacated on motion, or whether it is not necessary to bring suit for that purpose. The right to obtain such relief by motion has been upheld; but the better rule seems to be that no such motion can properly be entertained after the term, or where the time within which to move is fixed by law, after the time limited — and that, after that time, an action is necessary. It must not be understood from this, however, that a court is bound, after the term, to enforce a void judgment. It has control over its process, and may decline to allow it to be used to execute such a judgment, and may arrest its process when issued thereon."

On reflection I think it clear that in habeas corpus proceedings, unaided by certiorari or other proceedings of review, wherein the defendant or prisoner is held illegally imprisoned or restrained and discharged because of a void or unauthorized judgment, that jurisdiction of the cause itself in which the judgment was rendered is not transferred to the court releasing or discharging the prisoner so as to give it jurisdiction to itself pronounce a judgment in the cause or to direct the court in which the void judgment was rendered to do so and as may be done on appeal or writ of error.

A habeas corpus proceeding is civil and not criminal in its nature. Fisher v. Baker, 203 U.S. 174, 27 S.Ct. 135, 51 L.Ed. 142, 7 Ann. Cas. 1019, and note, page 1020. It is a collateral and not a direct attack upon the judgment, except where, as in the Supreme Court of the United States, the writ is issued in the exercise of appellate jurisdiction, and is accompanied by a writ of certiorari to bring up the records and proceedings of the inferior court. Note, 23 Am. St. Rep. 108; 12 R.C.L. 1184, 1196. The existence of another remedy does not preclude a resort to the writ to obtain relief from illegal detention. 12 R.C.L. 1188. It is not a proceeding in the criminal action in which the judgment was rendered. It is a new suit brought by the defendant to enforce a civil right of personal liberty. 12 R.C.L. 1184. To render a judgment immune from attack, the court must have had, not only jurisdiction of the subject-matter and of person, but also authority to render the particular judgment in question, and, if either of these elements is wanting, the judgment is void and open to collateral attack and one restrained thereunder entitled to be discharged. 12 R.C.L. 1197.

In some of the cited cases in the prevailing opinion, where on habeas corpus proceeding the defendant or the prisoner was held illegally restrained or imprisoned on a void or unauthorized judgment, and released and discharged from custody and remanded to the inferior or lower court in which the void judgment was rendered to pronounce a valid judgment, such mandate was made without considering or discussing whether such inferior or lower court still had jurisdiction and custody of the cause and of the parties in which the void judgment was rendered. Such is evident from the case of In re Lee, 177 Cal. 690, 171 P. 958, and in other cited cases where such an order of remand was made. In other words, in such case the jurisdiction of the court below was merely assumed. As already suggested, we in the habeas corpus proceedings were urged to determine and hold that the district court still had jurisdiction of the cause and of the parties, and still was authorized and had jurisdiction to render a new and another judgment in the cause, and to remand the defendant to that court to render another judgment as was done In re Lee, supra, and in other similar cases, but we declined in such particular to follow such cases, and refused to so remand the defendant to the court below, and declined even to express an opinion as to whether that court still had or had not jurisdiction of the cause and of the defendant to render another or a new judgment, then believing that we did not have jurisdiction of the cause itself in which the void judgment was rendered, and hence had no legal authority to remand the defendant to the court below, and thus absolutely released and discharged the prisoner from custody, without prejudice to the rights of the state to take whatever lawful measures it might have to resume or acquire jurisdiction of the defendant. In such particular we but did what was done in the cited case of In re Bonner, 151 U.S. 242, 14 S.Ct. 323, 38 L.Ed. 149, and made the same kind of order as was therein made. And in harmony therewith in the concurring opinion it was stated that upon the petitioner's discharge it would be time enough to determine, what, if any, proceedings may be had in the district court in the cause in which the judgment was rendered to have another judgment rendered and entered, when such proceedings were had and our review sought of them. But now In re Lee, supra, and other cases of similar holdings cited in the dissenting opinion on the habeas corpus proceedings are here recited in the prevailing opinion, where in habeas corpus proceedings the defendant or prisoner, on being released and discharged from imprisonment on a void judgment, was remanded to the lower court to pronounce a valid judgment, and hence we on the habeas corpus proceedings ought to have done, but did not do, so. In fact, the dissenting members took the view that, though the defendant was imprisoned and held in custody by the warden on a void judgment, he nevertheless was not entitled to a discharge or release, but that the warden should be directed to deliver him over to the county sheriff to abide the further judgment of the district court, without considering what, if any, right or authority the sheriff had to receive or hold the defendant, or the district court to render a new or another judgment, in support of which the cases cited in the dissenting opinion are now here recited in the prevailing opinion. If it be intended to indicate or hold that the views expressed and the conclusion reached by the dissenting members in the habeas corpus proceeding were right, and those of the majority wrong, and that those of the dissenting members should now prevail, then why not overrule the holding of the majority in the habeas corpus proceedings and be done with it.

However, as heretofore suggested, we are now confronted with the real question of jurisdiction of the court below. While, as has been seen, a judgment void on its face may at any time be vacated or expunged, yet such action or motion, strictly speaking, is not a proceeding in the action, but is a mere application to have the records purged of an unauthorized and illegal entry. Mueller v. Reimer, 46 Minn. 314, 48 N.W. 1120. When that is done, whether the court still has jurisdiction of the cause and of the parties to enter a new or another judgment or to further proceed in the case is quite another question. Though a court at some stage of the proceedings of a cause may have had full jurisdiction of subject-matter and of the person, yet at some subsequent stage may lose or may have lost both. 1 Freeman on Judgments (5th Ed.) p. 729. If, when a void judgment is expunged or vacated, the court still has jurisdiction or custody of the cause and of the parties, and its action properly invoked, it may readily be conceded that the court has jurisdiction to render a new or another judgment. If, however, the court has lost jurisdiction of the cause, he cannot do so.

Because a court at some stage of the proceedings had jurisdiction of subject-matter and of the parties when the void judgment was rendered and entered, it does not follow that the court for all time thereafter retained jurisdiction of the cause and of the parties to render a new or another judgment. That, I think, is the effect of the holding in this jurisdiction. In re Flint, 25 Utah 388, 71 P. 531, 95 Am. St. Rep. 853, the defendant on February 25, 1902, was convicted of the crime of forgery. The time for sentence was fixed March 5, and was continued to March 12. At that time the court suspended sentence indefinitely, and permitted the defendant to go on his own recognizance. On December 5, on motion of the district attorney, the court ordered the defendant to appear January 5, 1903, for sentence. At that time, and over objections of the defendant that the court had lost jurisdiction, the court sentenced him to the state prison for a term of one year. On habeas corpus proceedings, this court held that the court, though it had jurisdiction of the cause and of the parties when the order or judgment of suspension was rendered, yet was unauthorized to indefitely suspend sentence as was done, and that, when the court did so, and permitted the defendant to go on his own recognizance, the court lost jurisdiction over him, and that all subsequent proceedings were unauthorized to indefinitely suspend sentence as was done, that the order or judgment of suspension was merely erroneous, but was unauthorized, and that it was not within the power of the court to render such a judgment, and that the court eleven months thereafter and after term time had lost jurisdiction to render a new or another judgment. That case is a leading case on the subject. It is cited with approval in many cases both of state and of federal courts. To the same effect, among others, are the following cases, in many of which the Flint Case is cited with approval: People v. Leinecke, 290 Ill. 560, 125 N.E. 513; People v. Barrett, 202 Ill. 287, 67 N.E. 23, 63 L.R.A. 82, 95 Am. St. Rep. 230; Ex parte Singer (C.C.A.) 284 F. 60; Grundel v. People, 33 Colo. 191, 79 P. 1022, 108 Am. St. Rep. 75; Collins v. State, 24 Okla. Cr. 117, 217 P. 896; Com. v. Morgan, 278 Pa. 395, 123 A. 337; Smith v. State, 188 Ind. 64, 121 N.E. 829, 3 A.L.R. 999; United States v. Wilson (C.C.) 46 F. 748; Mintie v. Biddle (C.C.A.) 15 F.2d 931, 933, where cases are cited from many different jurisdictions.

These cases proceed on the theory that, in the absence of a statute, the court is without authority and without jurisdiction to render a judgment suspending sentence or indefinitely to defer sentence, that such a judgment is void and of no force or effect, and that thereafter the court after term time lost jurisdiction of the cause and of the parties to render a new or another judgment in the cause. Such a judgment so rendered without authority or power is just as much a void judgment and a nullity as is the first judgment here rendered imprisoning the defendant in the state prison for an indeterminate sentence. The one is no more a mere erroneous judgment than is the other. Both involve the authority and power of the court to render the judgment. If the legal effect of the one is as though no judgment was pronounced or rendered, such, too, is the legal effect of the other. Both were held void because the court had no power or authority to render the judgment. Hence the Flint Case and the rule therein announced supported by, and, as in Mintie v. Biddle, supra, stated to be, the great weight of authority, may not be disposed of by the mere assertion that it involved a judgment or order of a suspension of sentence or of indefinitely postponing a sentence. Fundamentally the proposition lies deeper than that. The administration of the criminal law requires a court to pronounce judgment when and as by law provided. That must be done as by the statute and the Code prescribed. The court may not lawfully pronounce a binding judgment otherwise. Whenever a judgment in a criminal case is rendered, the court must be able to point to some provision of law authorizing the court to do so. If a court does not fix a day for judgment within ten days after verdict or plea of guilt and at such appointed time render a judgment as by sections 9041 and 9051 provided, the court nevertheless is required to render judgment within the term at which, or at least within a reasonable time after, the verdict was rendered or plea of guilt entered, unless on motion for a new trial or arrest of judgment or postponement of sentence or for other cause the case is continued for further proceedings, and the defendant by recognizance or otherwise still held amenable to orders and process of the court. After all that, and after a case is finally disposed of and no appeal or writ of error or review taken and no stay of judgment had, the court loses jurisdiction of the cause and of the defendant, and may not years thereafter render a new or another judgment, especially after the first judgment has partly been executed. There is no halo in a void judgment. It is nothing. It is as though no judgment had been pronounced or rendered. Certainly, if the court here had pronounced or rendered no judgment, and the proceedings in the cause after verdict or plea of guilt in no particular postponement continued or arrested, and the defendant no longer in the custody of the court, no one would hardly contend that the court more than three years thereafter still had jurisdiction of the cause and of the parties to pronounce a valid judgment in the cause. To so contend is, as it seems to me, to go back to the "reign of James I., when he sent Sir Walter Raleigh to the block 15 years after his conviction." People v. Reilly, 53 Mich. 260, 18 N.W. 849, 850.

In the prevailing opinion it is said that the defendant was the actor setting in motion the habeas corpus proceedings by which the judgment was declared void and the defendant released and discharged. What if he did? He had the undoubted right to initiate such proceedings. It was not his fault that the void judgment was rendered against him. It was the fault of the state, the fault of the district attorney, the fault of the court. In no sense may it be said that, because the defendant failed to prosecute a direct appeal from the void judgment, or did not sooner seek his release from the illegal imprisonment, he is now estopped from challenging the jurisdiction of the court to pronounce the new or further judgment which was rendered against him. For more than three years he was wholly without the custody of the court and in the custody of the warden of the state prison under a commitment of a void judgment sentencing him to imprisonment for an indefinite period between ten years and his natural life. After the commitment was issued, the defendant delivered to the warden, and after the defendant had served more than three years in execution of the judgment, it is difficult to perceive how the case during all such period still was pending in the district court or the defendant still in the custody of the court, and more difficult is it to perceive that the defendant, by seeking and being granted his release from illegal imprisonment and custody, thereby conferred jurisdiction on the court below in which the void judgment was rendered to resume jurisdiction which theretofore clearly had been lost.

The effective administration of the criminal law requires, when one pleads guilty or is convicted of crime, judgment to be promptly and certainly rendered as by the statute and Code provided; and, where the court through no fault or act of the defendant fails to render a judgment, or where the court itself in no particular invited or induced to do so by any act of the defendant renders a void judgment which in legal effect is a nullity, and as though no judgment had been rendered, all proceedings in the cause wholly and finally ended, the jurisdiction of the court in the cause exhausted, the defendant no longer in the custody of the court, the term at which the judgment was rendered wholly ended, and numerous subsequent terms come and gone, and the judgment partly executed, the court may not years thereafter, with no further or other proceedings invoking and conferring jurisdiction, render and enter a new or another judgment. As said by the court in Mintie v. Biddle, supra:

"Obviously, the matter of the furtherance of the administration of justice is not a unilateral one. The accused is due some modicum of consideration. It is not alone the ends and accommodation of the government which are to be considered and subserved; but those of the defendant as well."

Cases are cited where, in the prosecution of a cause, a void judgment was rendered, and because thereof the accused again prosecuted on a new cause or proceeding for the same offense, and where it was held that the void judgment of the first cause was not a bar to the prosecution in the second cause or proceeding, and could not be interposed as once in jeopardy. I think it apparent such cases have here no application. There, jurisdiction in the second cause or proceeding was not acquired or exercised by or through the first cause or proceeding, but in spite of it. In other words, the jurisdiction acquired was in virtue of the new and not of the old proceeding. The state, when it initiated or instituted the new or second proceeding, may well have done so because of a prerequisite to again clothe the court with jurisdiction lost by it in the first cause or proceeding. There no judgment was rendered in the first cause or proceeding resulting in the void judgment but in the second cause or proceeding. In the case in hand no proceedings in a new case were instituted or initiated, nor even in the cause in which the void judgment was rendered. The state, without any such proceedings, more than three years after the void judgment was rendered, rearrested the accused and summarily caused the second judgment to be rendered. It did so on the theory that, when a court once having had jurisdiction of a cause and of the parties, and though a final judgment was rendered disposing of the case, the parties sent out of court, and the custody of the cause surrendered and no review thereof prosecuted in the cause or other proceedings had therein with respect thereto, yet, if in another and independent cause between different parties wherein the validity of the judgment is brought in question and by a court of competent jurisdiction held void, the court rendering the void judgment, regardless of time and of its part execution, retained a continuing jurisdiction of the cause in which the judgment was rendered, and, without any new or other proceedings had therein, was clothed with power to render a new and another judgment. I cannot yield assent to such a doctrine.

If because of views herein expressed it be thought the defendant ultimately may go without adequate punishment, let the fault rest where it belongs — on the state, the district attorney, and the court. To meet or prevent consequences of such remisses does not justify a stretching of the statute and the Code of Criminal Procedure, nor a misapplication of fundamental principles of jurisdiction. I think the Flint Case ought to be followed, and the second judgment here, as it was there, declared a nullity.

Having reached such conclusion, it is unnecessary to consider the ruling refusing the defendant to withdraw his plea of guilty and enter one of not guilty and grant a new trial, except to make the observation that, while on the record it is not shown that the plea of guilty was entered through misapprehension, undue influence, coercion, or promise, neither is it shown that, in the event a new trial had been granted, the evidence of the state because of lapse of time no longer was available or that the state otherwise could not properly have presented its cause as it might have done had the plea of guilty not been entered. No claim was made by the state that its evidence no longer was available. It merely urged that the statute permitting a withdrawal of a plea of guilty before judgment was not mandatory, only discretionary, and should not now be permitted. With respect thereto, the court merely observed that, in order that the question may be settled by the Supreme Court, "the court will deny the right of the defendant to at this time withdraw his plea and to which you may have your exception." The withdrawal was not denied because of an insufficient showing or because to grant it would have been to the prejudice of the state. It was denied to let the Supreme Court settle it. And now that is called the exercise of a sound discretion with which we may not interfere. In the administration of the criminal law, I see no reason to hold a tight rein on the defendant and a loose or no rein on the state. If, as is contended, the court still had jurisdiction of the cause, and that the statute permitting a withdrawal of the plea is discretionary, the court, in the proper administration of the law and in order that a sound discretion may be exercised in granting or refusing the withdrawal, was required at least to some extent to inquire into the circumstance of the entry of the plea and as to the prejudice of the state in the event the plea was permitted to be withdrawn and a new trial granted. In such case, I think the "furtherance of the administration of justice is not a unilateral one," and the ends and accommodations of the state alone to be considered and subserved, or the question passed to this court to indulge a presumption of the exercise of a sound discretion when on the record none was exercised and the question merely passed to this court.

ELIAS HANSEN, J. (dissenting.)

In my opinion, the law announced by this court in Re Flint, 25 Utah 338, 71 P. 531, 95 Am. St. Rep. 853, and followed in the case of Mackelprang v. Walker, 74 Utah 121, 277 P. 401, is controlling in this case. The facts in the Flint Case are thus stated in the opinion:

"On the 25th day of February, 1902, the defendant in this case was duly convicted in the Second judicial district court of this state of the crime of forgery. The court made an order directing the defendant to appear March 5, 1902, for sentence. The case was again continued, and March 12, 1902, was fixed as the time for pronouncing judgment. The defendant appeared for sentence on the last-mentioned date, and the court, on its own motion, made and entered the following order: `The defendant having been convicted of the crime of forgery, and being now before the court to receive sentence, and the court being sufficiently advised, it is ordered that sentence be, and the same is hereby, suspended, and the defendant permitted to go upon his own recognizance.' The defendant, by this order, was, in effect, discharged from custody. On the 5th day of December, 1902, the judge before whom the defendant was tried and convicted made and entered the following order in the case: `On motion of A.B. Hayes, Esq., district attorney, it is ordered that said defendant appear before the court for sentence on Monday, January 5, 1903.' On January 5, 1903, the time for fixing sentence was continued until January 12, 1903, on which date the defendant appeared in court, and duly objected to any further proceedings in the premises on the ground that the court had no jurisdiction of the person of the defendant. The court overruled the objection, and sentenced the defendant to the state prison for a term of one year, and made an order duly committing him to the proper officers, with directions that the judgment be enforced."

Lee Lim was sentenced on October 13, 1926, to an indeterminate term in the state prison after he had entered a plea of guilty to a charge of murder in the second degree. On October 15, 1926, he was delivered to the warden of the state prison of Utah, where he remained confined until, on habeas corpus proceedings, he was ordered discharged by an opinion of this court filed on December 31, 1929. After he was discharged and released, a warrant of arrest was issued out of the district court of Salt Lake county, and he was arrested. On February 1, 1930, he was brought before the district court of Salt Lake county. The state requested that a time be fixed for passing sentence. The defendant through his counsel resisted the passing of sentence upon the ground that the court had lost jurisdiction. The objection was overruled. On February 15, 1930, the district court sentenced the defendant to serve ten years in the state prison of Utah, the period to begin as of October 13, 1926.

It will readily be noted that the facts in the Flint Case and the facts in the instant case are in several respects quite unlike, but it does not follow that the Flint Case is not a precedent, and, as such, controlling in this case. The test of whether a prior case is a precedent in a subsequent case must be determined from a comparison, consideration, and a determination of whether or not the underlying principles of law of the two cases are the same, and not from a superficial comparison of the facts in the two cases. The pertinent inquiry here presented is, "Why had the court jurisdiction to resentence Lim when it did not have jurisdiction to sentence Flint? If the time which elapsed between the verdict or plea of guilty and the imposing of sentence is of importance in determining the question of whether the court did, or did not, have jurisdiction to impose the sentence here complained of, then clearly there is greater reason for holding that the court was without jurisdiction to sentence Lim than there was in holding that the court was without jurisdiction to sentence Flint. Approximately three years and four months elapsed between the time that Lee Lim entered his plea of guilty and the time that the sentence here involved was imposed upon him. Approximately ten and one-half months elapsed between the time that Richard Flint was found guilty and the date when the sentence, which this court held to be a nullity because the court had lost jurisdiction, was imposed upon him. If prejudice, sustained by a delay in imposing sentence, is to be of controlling importance, one who is merely held in suspense and uncertainty for a period of ten and one-half months, as in the Flint Case, has less cause to complain than does one who is imprisoned for three years and four months, as in the case of Lim.

It is said in the prevailing opinion that we need not consider whether it was proper for the trial court to fix the commencement of the term that the defendant should serve as October 13, 1926, the day the void sentence was pronounced, because "the defendant is not complaining of this part of the sentence, and indeed it is as favorable to him as he could hope for. Neither has the state complained of this feature of the sentence." If it be assumed that the trial court had jurisdiction to impose a sentence upon Lim, then the sentence imposed was "as favorable to him as he could hope for," but, if the court was without jurisdiction to impose any term of imprisonment on the defendant, then, and in such case, he had a right to hope for and receive a more favorable result, viz.: a discharge. Nor does the fact that the state is not complaining affect the question of whether the trial court did or did not have jurisdiction to impose the sentence here under review. If the trial court was without jurisdiction to pronounce any sentence upon the defendant, the failure of the state to complain of the sentence imposed cannot be said to confer such jurisdiction. It is by no means clear, as is apparently assumed in the prevailing opinion, that the legal effect of the sentence here under review entitles Lim to credit for the time he served under the void sentence. Comp. Laws Utah 1917, § 8531, provides that "the term of imprisonment fixed by the judgment in a criminal action commences to run only upon the actual delivery of the defendant at the place of imprisonment. * * *" The law applicable generally to the commencement and duration of imprisonment under a sentence is thus stated in 16 C.J. p. 1304:

"As a rule, the duration of imprisonment must be stated clearly and definitely, although it has been held that, where the period of imprisonment is definitely fixed by statute such period need not be specified in the sentence. As a general rule, the time for imprisonment to commence or to be inflicted is no part of the judgment or sentence proper, and according to the weight of authority, in the absence of a statute requiring it, the time when the imprisonment is to begin or end need not be specified in the sentence, it being sufficient to state merely its duration."

If the time fixed by the trial court for the sentence of the defendant to begin be regarded as no part of the sentence, and if the sentence "commences to run only upon the actual delivery of the defendant at the place of imprisonment," it is difficult to see how Lim may avail himself of any deduction for the term served under the void sentence. Assuming, however, that Lim may take advantage of the deduction attempted to be given him by the sentence here under review, still he had no legal right to have the time which he served under the void sentence deducted from the time which he may have been required to serve under the present sentence. The law applicable in such a case as this is thus stated in 16 C.J. p. 1373:

"Where defendant is confined in the penitentiary under a void or erroneous sentence because of his failure to obtain a suspension of his sentence during the pendency of proceedings in error, it is in no sense a part execution of a legal sentence, and by the rendition and execution of a legal judgment he is not punished twice for the same offense.

"A person released under a writ of habeas corpus after having served a part of a sentence of imprisonment imposed under a void indictment is not entitled to have the time so served credited on a sentence subsequently imposed under a valid indictment."

The following cases support the view that time served under a void sentence is no part of, and may not be deducted from, time served under a subsequent valid sentence. Ex parte Gunter, 193 Ala. 496, 69 So. 442; McCormick v. State, 71 Nev. 505, 99 N.W. 237; Ogle v. State, 43 Tex.Crim. R., 63 S.W. 1009, 96 Am. St. Rep. 860, 15 Am. Cr. Rep. 321. The great weight of judicial authority is to the effect that, in the absence of statutory provisions to the contrary, there is no legal authority for a court to deduct time served under a void sentence from the time to be served under a subsequent sentence.

When the defendant in this case was taken before the district court on February 15, 1930, for sentence, the case there stood against him on his plea of guilty, which was entered in October, 1926. The fact that the learned trial judge fixed the period of defendant's imprisonment to begin as of October 13, 1926, does not alter the case. That the trial court could properly have fixed the time of the beginning of the sentence here under review as of the date that the sentence was imposed is clear. That it was error to fix (assuming that the legal effect of the sentence does fix) the time that the defendant must serve to begin on October 13, 1926 (the date of the void sentence), would seem equally clear. If Lim was without right to have the time he served under the void sentence deducted from the sentence in question, then it would seem to necessarily follow that the court below was in error in making such deduction. The granting or refusing to grant a deduction for time served under a void sentence is purely a question of law, and may not well be said to be a question which merely appeals to the discretion of the court. If the court below had authority to either deduct, or refuse to deduct, the time which Lim served under the void sentence from the time that he should serve under the sentence here in question, nevertheless the fact remains that the delay of the court in imposing a valid sentence was prejudicial to him. There still remained the hazard that he would be compelled to serve full time without any deduction for the time served under the void sentence. Such a hazard is certainly as great a cause for complaint by Lim as was the suspense and uncertainty which Flint sustained because of the delay in imposing sentence upon him. By granting the defendant Lim credit for time served under the void sentence, it would seem that the sentence under review of necessity recognized the validity of the prior sentence to the extent of the time actually served. The defendant thus is placed in a position analogous, if not identical, to that of one who has served the valid part of a sentence which is in part void. It is quite generally, if not uniformly, held to be the law that, where a court imposes a sentence, part of which is valid and part of which is void, such court is without jurisdiction to amend the sentence so imposed after the defendant has entered upon the execution of the valid part. If a person is once legally punished for a crime, he may not again be punished for the same crime. To hold otherwise would be to disregard both our state and Federal Constitution, which directs that no man can be twice lawfully punished for the same offense. A number of cases so holding are cited in the prevailing opinion, among them Ex parte Lange, 18 Wall. (85 U.S.) 163, 21 L.Ed. 872.

If the trial court had erroneously sentenced Lee Lim to serve three years and four months in the state prison, and if he had served the whole of such sentence, he would have been entitled to a discharge, and, under the authorities, the trial court would be without jurisdiction to impose additional punishment. In the supposed case there would be the same miscarriage of justice that the prevailing opinion suggests would follow a discharge of the defendant in this case, and yet the court in the supposed case would be powerless to do anything in the premises. As a matter of evenhanded justice, the defendant in the supposed case is entitled to no better treatment at the hands of the state than is the defendant in the instant case. In the supposed case as in this case the fault lies with those whose duty it is to enforce and administer the law. If either the state or the defendant must suffer because of such fault, it should be the state and not the defendant. The miscarriage of justice that would follow from the immediate discharge of the defendant resulting in his serving two years and six months less than the term which he should serve under his sentence of ten years (assuming his behavior while imprisoned is such as to entitle him to the benefits of section 4331, Comp. Laws Utah 1917) is not cured or rendered any the less a miscarriage of justice by taking the other horn of the dilemma and thus require him to serve three years and four months more than the term for which he was sentenced.

A sentence or judgment may be void, and as such open to attack either collaterally or directly. It may be valid and thus not vulnerable to attack either collaterally or directly. It may be voidable or erroneous, so that it cannot withstand a direct attack but can withstand a collateral attack. The authorities generally recognize these three classes of judgments or sentences, and none other. The sentence under review, in order to escape the injustice of requiring the defendant to serve three years and four months in the state prison without a deduction therefor, seems to proceed upon the theory that the original sentence had some legal existence, apparently that of being voidable or erroneous. Having thus, to that extent, protected the defendant, the sentence then seems to proceed upon the theory that the original sentence was void, and therefore the court had jurisdiction to impose another sentence. It is one of the characteristics of our system of jurisprudence that fundamental principles of law may not be disregarded in order that the exigencies of a given case may be met. An adherence to such principles is necessary to the orderly administration of the law. Courts refuse to recognize a hybrid sentence which for one purpose is voidable or erroneous and for another purpose is void. A sentence cannot be wholly void and at the same time be merely erroneous or voidable. The fact that a sentence is void precludes it from being voidable or valid.

In the habeas corpus proceeding the original sentence imposed upon Lim was held to be void. As such, it has no existence in contemplation of law. Upon principle I am unable to perceive how a void sentence may serve the purpose of indefinitely enabling a court to retain jurisdiction to impose a valid sentence when, as in the Flint Case, the court lost jurisdiction to impose any sentence because it ordered that sentence be "suspended and the defendant permitted to go upon his recognizance."

It is said in the prevailing opinion that in the Flint Case "the trial court reached the conclusion that the defendant should not be made to suffer for his crime the punishment provided by statute, at least not presently or during good behavior, and thereupon suspended the imposition of sentence and discharged the defendant." The order in the Flint Case was that "the defendant having been convicted of the crime of forgery, and being now before the court to receive sentence, and the court being sufficiently advised, it is ordered that sentence be, and the same is hereby, suspended, and the defendant permitted to go upon his own recognizance." As I understand the language just quoted, it does not justify the statement that the trial court reached the conclusion that the defendant should not be made to suffer for his own crime or that the trial court intended to permanently discharge the defendant. The fact that the trial court later attempted to impose a sentence upon the defendant would tend to indicate that all the trial court intended to do was to temporarily suspend sentence. When the original sentence was imposed upon the defendant in the instant case, there can be no doubt but the trial court intended to place him beyond its jurisdiction. The sheriff was ordered to deliver the defendant to the warden of the state prison. So far as the trial court was concerned, the case against Lee Lim was a closed book as soon as Lim was delivered to the warden of the state prison. Those who are confined in the state prison are in no sense within the jurisdiction of the various courts which sentenced them. On the contrary, they are within the exclusive jurisdiction of those whose duty it is to administer the affairs of that institution. Nor can it be said that a delay of three years and four months is a reasonable delay between the plea of guilty and the imposition of the sentence in the instant case, and that a delay of ten and one-half months between the verdict of guilty and the imposition of sentence was an unreasonable delay in the Flint Case. I can perceive of no just or reasonable excuse for holding that the court retained jurisdiction of the defendant in this case for the purpose of imposing sentence upon him and at the same time adhering to the rule announced by this Court in the Flint Case. From whatever angle this case is viewed, the only conclusion permissible in the light of the law announced in the Flint Case is that the trial court was without jurisdiction to impose the sentence here complained of. There are cases which reach a different result, and there were such cases at the time the Flint Case was decided. In addition to the cases cited in the prevailing opinion and in the dissenting opinion of Mr. Justice Straup herein, a list of cases dealing with the question here presented will be found collected in the case of Mackelprang v. Walker, supra. It may be that the court, as at present constituted, would have reached a different result had they participated in the Flint Case, but, unless we are thoroughly convinced that the Flint Case is wrong, I think we should follow the law as there announced. The construction placed upon a statute by a court should not be rejected merely to conform to the views of a changed personnel of the court.

Our Code of Criminal Procedure, title 120, chap. 37, Laws of Utah 1917 (section 9041 et seq.), fixes the time within which a court shall pronounce judgment after a plea or verdict of guilty. Since the Flint Case was decided, February 13, 1903, Legislatures have come and gone, but no amendment has been made in the statute with respect to the time within which the court shall pronounce judgment after a plea or verdict of guilty. This is not a case where the court exercised, or attempted to exercise, the power to suspend sentence as provided for in chapter 74, Laws of Utah 1923. The Legislature is apparently satisfied with the construction of the statute relating to the time when judgment or sentence shall be imposed in a criminal case as announced in the Flint Case, and therefore, as I think, this court should be content with such construction.

I am of the opinion that the judgment and sentence appealed from should be reversed, and the defendant discharged.