The opinion of the court was delivered by
Smith, J.:The petitioner was prosecuted in the district court of Johnson county on an information charging him with stealing chickens in the night-time. The *274following is the record of the proceedings had on such information:
“Now, on this day comes plaintiff, by Charles C. Hoge, county attorney, and attorney for the prosecution, and as well also comes defendant’s attorney, Chancy B. Little, who announces to the court that the defendant herein is in the custody of P. K. Hendrix, sheriff of Johnson county, Kansas, and is in the jail of said county, and is desirous of pleading guilty at this time to the information herein.
“Thereupon the court orders said sheriff to produce the body of said defendant in open court. And said order having been obeyed, said defendant duly appears in open court, in his own proper person, and by Chancy B. Little, his attorney.
“Thereupon the defendant is duly arraigned, and listens to the reading of the information, as read by the clerk, and charging him with grand larceny; and is required to plead thereto. And thereupon defendant pleads guilty.
“And now this cause comes on for judgment and the sentence of the court against the defendant, William Howard, upon the plea of guilty, heretofore entered against him herein, upon arraignment upon the information filed against him herein for the crime of grand larceny, and thereupon comes Charles C. Hoge, county attorney for Johnson county, Kansas, on behalf of the prosecution as before, and by order of the court the defendant is brought into court by the sheriff of said county, and appears in court in his own proper person, and by Chancy B. Little, his attorney, and the defendant, being now caused to stand before the court, is informed by the court of the plea of guilty, heretofore pleaded by him herein, upon arraignment to said information filed against him herein by the said county attorney aforesaid for grand larceny, and is asked by the court whether he has any legal cause to show why judgment and sentence of the court should not be pronounced against him upon the said plea of guilty herein; and, no sufficient cause being alleged by the defendant, or appearing to the court, why such judgment should not be pronounced,
“It is, therefore, now by the court here considered, ordered and adjudged that the said defendant, William Howard, be and he is hereby sentenced to confinement and hard labor in the state penitentiary of the state of *275Kansas until discharged therefrom by due course of law; and that he pay the costs of the prosecution herein against him, taxed at $-, and that execution issue.”
The petitioner alleges that this judgment is void, and that he is unlawfully deprived of his liberty and imprisoned in the state penitentiary by the warden thereof (whom he has made respondent), claiming to act under authority of such sentence. The respondent moves to quash the writ on the ground that the petition does not state facts sufficient to entitle the petitioner to the relief prayed for, and the case is submitted on the petition and motion.
There are only two degrees of larceny under the crimes and punishments act of this state, viz., grand larceny, and petty larceny; but there are two penalties for acts defined as grand larceny. Thus, upon conviction of certain acts defined as grand larceny, a penalty of imprisonment not exceeding seven years is prescribed, and for the commission of certain other acts defined as grand larceny, imprisonment not exceeding five years is prescribed. To the latter class the stealing of domestic fowls in the night-time was added by chapter 218 of the Laws of 1903.
Prior to the enactment of the indeterminate-sentence act (Laws 1903, ch. 375) the trial court, upon the conviction of an accused of grand larceny, having knowledge of the particular acts charged, pronounced a certain determinate sentence of imprisonment. If the criminal act fell in the seven-year class, imprisonment was imposed for seven years or some definite shorter term; if in the five-year class, the sentence was for five years or some definite term shorter than five years. Hence there could be no confusion or uncertainty, even if the record were not made in compliance with section 5699 of the General Statutes of 1901, which reads:
“Whenever judgment upon a conviction shall be rendered in any court, the clerk of such court shall enter *276such judgment fully on the minutes, stating briefly the offense for which such conviction shall have been had, and the court shall inspect such entries and conform them to the facts; but the omission of this duty either by the clerk or judge shall in no wise affect or impair the validity of the judgment.”
Under the statutes in force prior to the enactment of the indeterminate-sentence act an accused found guilty of the crime of grand larceny might have been sentenced to confinement and hard labor in the penitentiary for four years. If the record disclosed only these two facts — the conviction and the sentence — it- would have been impossible to tell whether the crime committed was one for which the extreme penalty was five years or seven years. The convict and the prison officials would, however, have known definitely that the convict was placed in their keeping for a definite term of four years, not to be exceeded in any' event, but which might be reduced by good conduct under the rules of the prison.
Under the sentence in question the warden knows only that the court attempted to sentence the petitioner to the extreme penalty for grand larceny (The State v. Page, 60 Kan. 664, 57 Pac. 514), but he has no official knowledge as to whether that penalty is five or seven years’ imprisonment. It is urged that the extreme penalty for the crime of grand larceny is five years, except in certain specified cases in which it is seven years, and that the judgment should be presumed to be in the general class and not in the exceptional class; or, if the term of sentence be in doubt, the culprit should be given the benefit of the doubt and be held to have been sentenced to the shorter term. We cannot accept either of these contentions. A judgment of imprisonment, to be valid, must be so definite and certain in its terms that both the convict and the officer upon whom its execution devolves may know the term of imprisonment. (Picket v. The State, 22 Ohio St. 405; The People, ex rel., v. Pirfenbrink, 96 *277Ill. 69.) If the punishment attempted to be imposed by the judgment be greater than is authorized by law, the judgment is void. (In re McNeil, 68 Kan. 366, 74 Pac. 1110; In re Dill, Petitioner, 32 Kan. 668, 5 Pac. 39, 49 Am. Rep. 505.)
The statute prescribes one penalty for certain acts denounced as grand larcenies, and another penalty for certain other acts also denounced as grand larcenies. Hence the judgment must show in which one of the two classes of grand larceny the criminal act falls before a sentence under the indeterminate-sentence act can be imposed. This was not necessarily so under the preexisting statute, where the court determined the duration of punishment.
Under the indeterminate-sentence act the law, not the court, says what the duration of punishment shall be. (The State v. Page, 60 Kan. 664, 57 Pac. 514.) It imposes the extreme penalty, and then provides for its mitigation. Before it can be determined from the law what the extreme penalty is there must be a definite sentence to which the law can be applied, and any attempted sentence short of this is a nullity. Such is the attempted sentence in this case. The judgment is so indefinite and uncertain as to the particular grand larceny for which the defendant was to be punished that the law attaches neither extreme penalty thereto; and a commitment to imprisonment in the penitentiary for an unlimited time is a nullity. It is not a case of the imposition of a greater or of a less penalty than is authorized by law. It is a sentence to confinement and hard labor in the state penitentiary to which neither the court nor the law places any duration as to time. The attempted sentence being a nullity, the petitioner stands in the position of one who has not been sentenced at all. He has pleaded guilty to a definite charge of a crime, but has not been sentenced therefor.
We have not overlooked In re Nolan, 68 Kan. 796, 75 Pac. 1021, in which practically the same question was involved, and in which the decision was apparently ad*278verse to the conclusion herein reached. It will be observed, however, that the Nolan case was decided upon the authority of In re Black, Petitioner, 52 Kan. 64, 34 Pac. 414, 39 Am. St. Rep. 331, and on the question whether the defect in the verdict rendered the judgment thereon void. In the Nolan case the only question that is involved herein was ignored, and the court said that the Black case was “exactly in point” and quoted therefrom as follows:
“We think the record in this case shows that the district court regarded the verdict as a verdict of guilty of burglary in the first degree, and proceeded to sentence the defendant accordingly. In doing so, the court acted judicially, and judicially determined the effect of the verdict. If the court erred, the defendant had his remedy by appeal. He neglected to avail himself of that right. We do not think he can now obtain his discharge from custody because of an erroneous decision of the court as to the force and effect of the verdict.” (Page 69.)
Now the indeterminate-sentence act was not in existence in 1893, when the Black case was decided, and that case is not authority on the question here involved. Nor does the Nolan case purport to decide the question to be decided here — whether the judgment was void for indefiniteness — although it might well have been determined therein. From what has been said it is apparent that the numerous decisions cited relating to judgments not under an indeterminate-sentence law can have little application to the case at bar.
The petitioner claims the indeterminate-sentence act of 1903 is unconstitutional. The case of The State v. Page, 60 Kan. 664, fully disposes of this contention adversely to him.
It is the judgment of this court that the sentence is void; but, the conviction being regular and valid, the petitioner ought not to be discharged. A valid judgment should be rendered, and the petitioner should be returned to the custody of the proper authorities for that purpose. If, however, this be not done within *279twenty days, the petitioner will be discharged from the warden’s custody.
Johnston, C. J., Burch, Porter, JJ., concurring.