¶1delivered the opinion of the court.
¶2The Attorney-General moves this court to dismiss the writ of error in this case upon the ground that the wrk was not issued until after the prisoner, the plaintiff in error, was actually confined in the State prison, in execution of the sentence of the court. And the argument was, that the judgment or sentence being in process of execution, the defendant being actually confined in the State prison, it would avail him nothing if the judgment were reversed, there being no lawful means of relieving him from the confinement, and he could not, therefore, be present at a new trial. And in effect thak the actual confinement in the State prison in execution of the sentence was an actual limitation of the time for procuring a writ of error. By the statute, there is no specific limitation of the time (within which this writ must be obtained in criminal cases. Practically, if the sheriff should, as he may, deliver the prisoner to the warden of the State prison at the moment the sentence is pronounced by the court, the rule contended for would utterly deprive him *576of the benefit of the writ, and he would be subjected to all the ignominy and suffering incident to the conviction and confinement for an infamous offense, while the record and proceedings may show that he had not committed any offense whatever.
¶3Should this court ascertain, upon a consideration of the case, that the prisoner was improperly convicted or improperly sentenced, we apprehend there would be no difficulty in the way of delivering him from further confinement in the State prison under such conviction; so that we do not think that there would be any practical obstacle, in that respect, to a new trial. And it has been held that the term of imprisonment under a sentence of the court, upon conviction, commences at the . date of the sentence; (ex parte Myers, 44;) and, unless a different day be appointed for the commencement of the term of imprisonment, we do not see how it can be otherwise. So that, if the rule should be as contended for, it would in nearly every case deprive the prisoner of the benefit of the writ, for error can only be brought to the final sentence or judgment.
¶4The statute has expressly provided that, in cases of this kind, if the prisoner shall, at the time of applying for the writ, be in custody under sentence of conviction, the allowance of the writ of error shall not discharge such party from custody, except by order of the court or the justice allowing the writ and granting a stay of proceedings. Laws of 1848, Chap. 138, § 5.
¶5This clearly recognizes the right of the prisoner to have the writ at any time during his imprisonment under sentence.
¶6The motion to dismiss is denied.