from these decisions is embodied in the statute of this territory, and particularly in section 581 of the Code of Civil Procedure.

"Sec. 581. If it appear on the return that the prisoner is in custody by virtue of an order or civil process of any court legally constituted, or authorized by an officer in the course of judicial proceedings before him, authorized by law, such prisoner shall be discharged in either of the following cases: 1st. When the jurisdiction of such court or officer has been exceeded, either as to matter, place, sum or person; 2nd. When, though the original imprisonment was lawful, yet by some act, omission or event which has taken place afterwards, the party has become entitled to be discharged; 3rd. When the order or process is defective in some matter of substance required by law, rendering such process void; 4th. When the order or process, though in proper form, has been issued in a case not allowed by law; 5th. When the person having the custody of the prisoner under such order or process is not the person empowered by law to detain him; or, 6th. When the order or process is not authorized by any judgment of any court nor by any provision of law."

Under this statute, and the principles announced in the courts of highest resort, the only question in this case is whether or not the defendant is held by a void or valid process. Is the process void for want of jurisdiction?

The record discloses that the magistrate had jurisdiction over the person of the petitioner. The crime charged, if the act proved constitutes a crime, was within his express statutory jurisdiction, and the penalty, except the "hard labor" clause, was clearly such as he had power to impose. Four objections. are really raised by the petition. The fifth paragraph alleges that:

"The complaint upon which this petitioner was tried in said justice's court by said justice of the peace aforesaid does not state facts sufficient to constitute a crime, and as this petitioner is informed and believes, and so states the fact to be, said judgment and said commitment are each void in law."

This is not the allegation of any fact, but is in the nature of a general demurrer to the complaint. The difficulty in considering it arises from the fact that the record does not con

tain a copy of the complaint. The fourth paragraph of section 569 of the Code of Civil Procedure requires that a copy of the defective process "shall be annexed to the petition." It is not so annexed and is nowhere found in the record, and the court will not, therefore consider whether it ought to hear for the first time a general demurrer to a criminal complaint on a petition for habeas corpus.

The judgment of the justice's court and the commitment under which the prisoner is held are also attacked for want of sufficient averment. The marshal's return, as amended, contains the judgment, which is in substantial conformity with section 430 of the Code of Criminal Procedure. It shows upon its face the crime for which the accused was tried, his appearance, plea, trial, and sentence.

Even if it be conceded that the commitment is defective, the writ would not lie. Section 583 of the Code of Civil Procedure provides that:

"If it appear that the party has been legally committed for a criminal offense, or if it appear by the testimony offered with the return, or upon the hearing thereof, to be probably guilty of such offense, although the commitment is irregular, he shall forthwith be remanded to the custody or placed under the restraint from which he was taken, if the officer or person under whose custody he was be legally entitled thereto; if not so entitled, he shall be committed to the custody of the officer or person so entitled."

Before the petitioner is entitled to his discharge, then, it must be shown affirmatively on the face of his application that his restraint is without the support of the law-that it is in violation of law. To show errors in the judgment or commitment, or that he is restrained by the wrong officer, is not sufficient, for if this court finds that he is probably guilty of such offense he must be remanded to the proper restraint.

The judgment of the justice's court is also attacked and declared to be void because it condemns the prisoner to "hard labor" in the county jail, whereas the law provides only for

imprisonment therein. The fact that the court adjudged a penalty not authorized by law does not affect its original jurisdiction over the action or the person of the petitioner. That part of the penalty imposing imprisonment in the county jail is clearly within the statute, and the only question presented is whether the addition of the words "at hard labor" rendered the whole judgment void.

This question has been settled by the Supreme Court of the United States in the case of the United States v. Pridgeon, 153 U. S. 48, 14 Sup. Ct. 746, 38 L. Ed. 631, where the court said:

"Without undertaking to review the authorities in this and other courts, we think the principle is established that where a court has jurisdiction of the person and of the offense, the imposition of a sentence in excess of what the law permits does not render the legal or authorized portion of the sentence void, but only leaves such portion of the sentence as may be in excess open to question and attack; in other words, the sound rule is that a sentence is legal so far as it is within the provisions of law and the jurisdiction of the court over the person and offense, and only void as to the excess when such excess is separable, and may be dealt with without disturbing the valid portion of the sentence." See, also, Jackson v. U. S., 102 Fed. 473, 42 C. C. A. 452.

And in that case the court held that the excess in a sentence could only be avoided in a proceeding on writ of error, and said:

"Under a writ of habeas corpus the inquiry is addressed, not to errors, but to the question whether the proceedings and the judgment therein are for any reason nullities; and unless it is affirmatively shown that the judgment or sentence under which the prisoner is confined is void, he is not entitled to his discharge."

It does not appear upon the face of the petition or by the evidence in support of it that the "hard labor" clause in petitioner's sentence is being enforced against him, but only that the court below committed error in imposing it. Such error, under the rule laid down in United States v. Pridgeon, can only be corrected upon an appellate proceeding from the commissioner's court to this court. If, after the prisoner has served

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so much of his sentence as is legal, or an illegal and unauthorized penalty is actually being inflicted, a different question may arise from that which is now before the court. In re Swan, 150 U. S. 653, 14 Sup. Ct. 225, 37 L. Ed. 1207.

A final and more serious question, however, is fairly raised upon this record, viz.: Is a dog the subject of larceny in Alaska? If not, the petitioner is held for the commission of an act which is not a crime, his sentence and commitment are void, and he is entitled to his discharge on habeas corpus.

Section 42 of the Penal Code of Alaska provides a penalty of not less than one year nor more than seven years for the crime of larceny from a house, boat, or public building, and section 43 a penalty of not less than one year nor more than fifteen years for larceny of any horse, gelding, mare, colt, mule, ass, jenny, bull, steer, cow, calf, or reindeer. The larceny of a dog is not included within either section, and a justice of the peace has no jurisdiction over any crime arising thereunder. Such offenses are felonies, and only punishable after indictment in the district court. Section 41, however, provides that if any person shall steal any goods or chattels, or any government note, promissory note, or bill of exchange, bond, or other things in action, or any book of accounts, order, or certificate concerning money or goods due or to become due or to be delivered, or any deed or writing containing a conveyance of land or any interest therein, or any bill of sale or writing containing a conveyance of goods or chattels, or any interest therein, or any other valuable contract in force, or any receipt, release, or defeasance, or any writ, process, or public record, the property of another, he is guilty of larceny. If the property stolen is of a greater value than $35, he shall be punished by from one to ten years in the penitentiary, and, if of less value, by imprisonment in the county jail not less than one month nor more than one year, or by a fine not less than $25 nor more than $100. By section 410 of the Code of Criminal Procedure a justice of the peace

is given special jurisdiction in cases of petit larceny, i. e., where the punishment thereof may be imprisonment in the county jail or by fine.

The prisoner at the bar was convicted of petit larceny before a justice of the peace, the dog being alleged by the complaint to be of the value of $34 only, and the offense consequently punishable by imprisonment in the county jail or by fine. The dog is not specifically mentioned in the statutes of Alaska among the animals or other property subject to larceny. If it is property whose taking is larceny, it must be because it is included within the phrase "goods and chattels," whose unlawful taking is made larceny by section 41 of the Penal Code. It is contended, however, that these words must be given a limited construction, because all other classes of property mentioned in the section are writings, notes, bonds, deeds, book accounts, and public records, and that the phrase should be construed as if it read "and other similar goods and chattels," and cannot be fairly extended to include a dog. In some states it has been held that a dog is not included in the phrase "goods and chattels" in a larceny statute, and that the animal is not the subject of larceny. State v. Lymus, 26 Ohio St. 400, 20 Am. Rep. 772; Findlay v. Bear, 8 Serg. & R. (Pa.) 571. It is also urged that, as section 43 of the Penal Code provides a specific penalty for the larceny of a long list of domestic animals, in which the dog is not mentioned, it is necessarily excluded from the protection of the law. Section 43, however, does not specifically mention hogs or sheep, yet it can scarcely be contended that they are not the subject of larceny. Gold dust, the most familiar and common form of wealth in a mining region, is not specifically mentioned, yet it cannot be doubted that its unlawful taking may be punished as larceny. A distinction, however, is said to exist between the unlawful taking of these forms of property value and the dog, based upon the argument that hogs. sheep, and gold dust were recognized as the subject of lar