I concur in the reasoning and the result reached in the opinion signed by my brethren, McKinstry and others. In doing so I desire to add that I do not wish to be considered as concluded by anything contained in that opinion, as to a judgment or sentence of any court of criminal jurisdiction known to the Constitution and laws of this State. I am strongly inclined to the opinion that the same result must be reached upon a so-called judgment of any of the Superior Courts, when there is nothing in the shape of law to maintain the judgment. It must be remembered that we have no criminal common law. All our public offenses or crimes are statutory. Unless a statute exists making an act a crime or a public offense, (see Penal Code, § 6) no one can be adjudged to suffer punishment for the commission of it, however heinous it may be when tested according to the ordinary criterion of public duty or public obligation. To hold that any court of criminal jurisdiction can adjudge an act, not a public offense by statute, deserving of punishment and sentence, and commit to prison or fine for the commission of such an act, which, in such a condition of the law, is innocent, and that the person so sentenced could not be relieved from it on habeas corpus, would be, it seems to me, to hold that the court is invested not only with judicial, but with legislative power—that the court can make the law, create the offense, and adjudge a prisoner guilty of having committed it. The court in such a case "would have no jurisdiction; as was said by the learned Judge who wrote the opinion in Corryell’s case (22 Cal. p. 181) : “The court derives its jurisdiction from the law, and its jurisdiction extends to such matters as the law declares criminal, and none other, and when it undertakes to imprison for an offense to which no criminality is attached, it acts beyond its jurisdiction.” Such cases, it is evident, must be of rare occurrence. They are the offspring of peculiar circumstances, which happen inf re*230quently. When they do occur, and are presented for adjudication, should not the court be as ready in such emergencies to relieve on habeas corpus as to enforce the legal punishment in case of guilt ? ” (See People v. Liscomb, 60 N. Y. 569, 570.) I fail to see that any serious consequences can flow from such a use of the writ of habeas corpus, unless an injury can result from the enlargement of an innocent person, whom some court has, by grievous mistake and illegal sentence, adjudged to suffer confinement in prison.
However, the question is not before us for decision, and these few observations are intended to preclude a conclusion which might possibly be drawn from the opinion of the Court, and to state the point without deciding it.
Myrick, J.: I find myself unable to concur in the conclusions reached by my associates.
Morrison, C. J.: I dissent.