dissenting. As the petitioner has not shown that he is unlawfully restrained of his liberty, I do not believe the writ of habeas corpus should be granted. He complains of a “defective mittimus” and “invalid sentence,” which are not grounds for the granting of a writ of habeas corpus.
The indictment in case No. 16700 did charge that the peti*493tioner “unlawfully, maliciously and forcibly broke and entered a certain building, to-wit: a storeroom located at 1931 Gallia Street, Portsmouth, Ohio of one Henry Meyer Company in the day season, with intent to commit Larceny therein,” and the petitioner alleged that the jury did find him guilty of “the crime of breaking and entering in the day season with intent to commit a felony.” If so, it is .apparent that the conviction was consistent with the indictment even though the certified copy of the Sentence appears to be erroneous.
It does not appear that the court which rendered the order lacked jurisdiction over the person of the petitioner or of the subject matter, and an error in the sentencing procedure does not entitle one to a writ of habeas corpus. Section 2725.05, Revised Code. See also Evans v. Sacks, Warden, 173 Ohio St., 116.
As to the entry of the trial judge labeled “Nunc Pro Tunc,” the entry itself recites what was done on November 13, 1953, and then contains these words “The Court now directs that the same is to run concurrent with the sentence heretofore imposed in case No. 16625 and case No. 16616.” (Emphasis added.) This is not a “Nunc Pro Tunc” entry.
The facts show that the sentences in cases No. 16616 and No. 16625 were entered after November 13, 1953, and were not “heretofore imposed,” and it appears that the judge is attempting to change the sentence some eight years later. This he has no authority to do, and such action on the part of the trial judge should not be the basis for an allowance of a writ of habeas corpus.
It should also be noted that evidence presented indicated that the state’s penal records had been corrected so as to show that the sentence under case No. 16700 was for a term of one-to-five years, and there is indication that one of the sentences has been served and it would seem that petitioner is now serving the sentences rendered in cases No. 16616 and No. 16625. If the trial judge had intended concurrent sentences, and had orally told the petitioner that in 1953, and a clerical mistake was made, a proper nunc pro tunc entry in those cases should entitle the petitioner to his freedom.