
    William Adams, Appellant, v. Marquis Barr, Warden of the Penitentiary at Anamosa, Iowa, Appellee.
    Criminal law: teem of sentence. The indeterminate sentence law 1 controls the term of imprisonment in all cases where the crime was committed subsequent to the passage of the law, and a sentence for ,a definite term is of no legal force; but the warden of the penitentiary may restrain the accused in conformity with the statutes, notwithstanding the sentence.
    Same: determinate sentence: expiration: discharge of accused. 2 Where there was nothing in the record on appeal to shew that the crime of which defendant was accused was not committed prior to the passage of the indeterminate sentence law, it will be presumed that the judgment fixing a determinate sentence was lawfully imposed, and upon expiration of the sentence the accused will be entitled to a discharge.
    Appeal from Jones Disimct, Court. — TTon. F. O. Ellison, Judge.
    Tuesday, February 13, 1912.
    Habeas corpus proceedings brought by the plaintiff, an inmate of the penitentiary, to test the legality of his imprisonment. The district court refused to sustain the writ and remanded plaintiff to the custody of the warden. From this order an appeal has been taken. The material facts are stated in the opinion.
    
    Reversed.
    
      Remley & Remley, for appellant.
    
      
      George Gosson, Attorney-General, and John Fletcher, Assistant Attorney-General, for appellee.
   Weaver, J.

On September 11, 1908, in the district court of Osceola county, Iowa, the plaintiff herein was convicted of the crime of burglary. Under the statute then in force, the maximum punishment, which could be lawfully imposed for such offense, was imprisonment in the penitentiary for the term of twenty years. Code, section 4789. At the same time, the statute further provided that, whenever a person over sixteen years of age is convicted of a “felony committed subsequent to July 4, 1907 — except murder and treason — the court imposing the sentence of confinement in the penitentiary shall not fix the limit or duration of the same, but the term of such imprisonment shall not exceed the, maximum term provided by law” for the crime for which the prisoner was convicted. Code Supp. section 57l8-al3. To this section is added other provisions for a board of parole, upon the initiation of which persons suffering such confinement may be enlarged upon parole before the expiration of the maximum term. This latter statute constitutes what is usually known as the “indeterminate sentence law.” In entering judgment against the plaintiff herein upon his said conviction of burglary, the district court did not impose upon him an indeterminate sentence, but fixed the limit of his confinement in the penitentiary at two years.

If this sentence is to be given effect according to its terms, and plaintiff is accorded the credit which it is agreed he has earned -for “good time,” the lawful period of his imprisonment would have expired and he was entitled to be discharged on June 17, 1910, a date which was prior to the beginning of this habeas corpus proceeding. The board of parole has taken no action and entered no orders concerning the further detention or discharge of the plaintiff. It should also be said that when plaintiff was received at the prison an entry was made upon the record or register of that institution that his sentence was for two years and would expire June 17, 1910. Thereafter by the aot of the warden the registry was so changed as to indicate a sentence for twenty years. Upon this showing, and without other evidence, the plaintiff was denied relief. In other words, it was held that, notwithstanding the time or term mentioned in the judgment of imprisonment, it was the right and duty of the warden to keep the plaintiff in restraint for the maximum period of twenty years less good time earned, should he not be sooner paroled or pardoned as provided by law. The correctness of this ruling is the one question presented by this appeal.

The appellant’s demand for a reversal of the judgment below is based upon two main propositions: Nirst, that the judgment was one within the power .and authority of the district court to enter, and, having never been appealed from or in any manner modified or set aside, it is the duty of the warden to obey it; and, second, that even if the act of a trial court in imposing a determinative sentence, in cases falling within the scope of the indeterminate sentence law, is to be treated as mere surplusage, and the warden of the penitentiary may ignore the same and detain the prisoner until he becomes entitled to discharge under the terms of the last-mentioned statute, yet in the case at bar, there being no evidence or showing whatever that plaintiff was over sixteen years of age when judgment was entered against him, or that the crime of which he was convicted was committed subsequent to July 4, 1907, the presumption of regularity, which we must accord to the proceedings in the district court, requires us to assume that said court found the plaintiff’s age to be such on the date of his offense that he was not properly punishable under the act providing for indeterminate sentences.

We are very clear that the first proposition of counsel is untenable. The validity of the statute has been repeatedly affirmed. State v. Duff, 144 Iowa, 142; State v. Perkins, 143 Iowa, 55; State v. Rozeboom, 145 Iowa, 620. By its terms it is provided, as we have already noted, that in imposing judgment of imprisonment, in the penitentiary in cases of the kind therein described, the court “shall not fix the limit or duration of the same.”. In other words, in such cases a judgment or sentence that the defendant “be imprisoned in the penitentiary according to law” is all that is required, and whatever is added thereto is unauthorized and may be ignored as void or mere surplusage. No reference whatever need be or should be made to a minimum or maximum pei’iod. When the record shows the offense of which he has been convicted, and that he is adjudged to suffer imprisonment in the penitentiary, the statute controls the period or term of his restraint, and it is to this statute, and not to the mittimus, to which the warden must look to ascertain the period of time for which he may keep him in custody. It follows that the first proposition advanced by the appellant can not be sustained.

The second point presented is not so easily met. Under the statute we have quoted the court was authorized to impose a determinative sentence of imprisonment in the penitentiary up to a maximum of twenty years TP011 a conviction of burglary committed prior to July 4, 1907. Indeed, for such an offense it was not authorized to impose an indeterminate sentence. It will be remembered that the sentence in this case was entered September 11, 1908, and the offense being thus punished may well have been committed Before July 4, 1907. Of the fact in this respect the record appears to be entirely without testimony or agreement or concession.

The plaintiff’s case in the present proceeding was submitted on the mittimus and upon the conceded facts or records to which we have referred. The defendant offered no other evidence. So far as appears, the appellant’s crime may have been committed prior to July 4, 1907, and that fact may have been clearly shown on the trial. The indictment is not before us, and whether it contained any allegation or averment as to the date of the offense we have no means of knowing. Indeed, it does not appear whether the indictment was found or returned before or after July 4, 1907. On this showing the presumption of regularity which attaches to the proceedings of a court of record must be given effect, and we can not hold that its judgment imposing a determinate sentence is void. To do so we would have to indulge in the mere conjecture that plaintiff’s offense was committed after July 4, 1907, and upon that conjecture alone hold that the trial court exceeded its powers. Such a holding would be a most radical departure from rules which have had the sanction of the courts from the beginning of our judicial history. The court had the power to impose a determinate sentence in certain cases of burglary. It did impose such a sentence. There is nothing shown to indicate that this particular burglary was not of the class or kind which could properly be so punished. AVe must therefore presume the court did its duty, and that the sentence for two years was properly entered. Such being the case, the plaintiff, upon the agreed statement of facts, was entitled to be discharged, and the order for his remand to the custody of the warden can not be sustained. That order is therefore reversed, and the appellee is directed to set the defendant at liberty. — Reversed.  