
    Ex Parte Peter Clark and James Clark.
    
      Imprisonment in Penitentiary—Sentence—“ Hard labor ”—Duty of Court as to.
    
    Under section 6799 of tke Revised Statutes, the court sentencing a person convicted of a crime punishable by imprisonment in the penitentiary, is authorized and required to declare in the sentence for -what period he shall be kept at hard labor, and for what period, if any, he shall be kept in solitary confinement, and render judgment against him for the costs of prosecution.
    (Decided December 5, 1893.)
    Habeas Corpus.
    In the return to the writ issued in the case, the warden of the penitentiary, where the petitioners are imprisoned, shows they are held under sentence of the court of common pleas of Eawrence county for the crime of burglarju It appears from the authenticated copy of the record attached to the return, that on the 12th day of June, 1893, the petitioners, after trial and conviction, were each sentenced to imprisonment in the penitentiary at hard labor for the period of six years, and adjudged to pay the costs of the prosecution. 'The petitioners claim that part of the sentence which requires them to be kept at hard labor, and the judgment for costs, are without any authority of law, and being so, the entire sentence is void, and therefore they are unlawfully imprisoned.
    
      E. E. Roney and W. D. Conn, for petitioners.
    
      J. K. Richards, Attorney-General, for the state.
   By the CouiH.

Section 6835, of the Revised Statutes, provides that persons convicted of the crime of burglary “Shall be imprisoned in the penitentiary not more than ten years, nor less than'one year.” The section does not provide that any part of the imprisonment may be at hard labor, or that the costs of the prosecution may be adjudged against the defendant; and because it does not, it is claimed the sentence imposed upon the petitioners is excessive and void. By the codification of 1880, the criminal statutes are brought together in one division called, “Part Fourth,” consisting of eleven chapters, 'the first of which, under the head of “ general provisions,” contains various provisions of a general nature, by which the courts are to be governed in the construction and administration of the laws embraced in the subsequent chapters. One of these general provisions is found in section 6799, which reads as follows: “When anjr person is sentenced to imprisonment in the penitentiary, the court shall declare in its sentence for what period he shall be kept at hard labor, and for what period, if any, he shall be kept in solitary confinement without labor; and in all cases of conviction of any offense the court shall render judgment against the defendant for the costs of prosecution, including a jury fee of six dollars. ” That section clearly authorized the sentence and judgment of which the petitioners are complaining. There was no necessity for the repetition of its provisions in section 6835, to give validity to the sentence at hard labor, or the judgment for costs. We have not discovered that any of the sections of the statutes defining crimes and providing for their punishment by imprisonment in the penitentiary, contain a provision, which in terms authorizes the court to make imprisonment at hard labor a part of the sentence, or to render judgment against the defendant for costs, nor in view of section 6799 is it necessary thejr should, for by that, such authority is clearly conferred on the courts in all cases coming within its provisions.

The prisoners are remanded io the cits tody of the warden.  