In Re Anderson

VAN DYKE, J.

This is a proceeding in habeas corpus. Heretofore we issued an order to the respondent warden to show cause why the writ prayed for should not be issued. The matter was ordered submitted after the filing of the brief of the attorney general in opposition to the issuance of the writ, and on October 29th this court filed an opinion adverse to petitioner and ordered that the writ be denied. Petitioner then brought to our attention the fact that he had been given additional time within which to file a closing brief and asked that this court revoke the order theretofore made. We treated his petition as one for rehearing and granted the same. Petitioner has since filed his brief and the matter has again been sub

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mitted for decision. We have examined this further brief and find nothing therein which persuades us that our former opinion was not correct. We therefore, except for a single change in citation, adopt that opinion which, as amended, reads as follows:

On May 1, 1948, the petitioner was committed to the state prison upon conviction of the crimes of kidnaping and robbery. On May 1, 1950, he was granted parole by the Adult Authority. On March 6, 1951, his parole was suspended for the reason that he had been arrested and charged with having had in his possession a gun capable of being concealed upon his person in violation of the Deadly Weapons Control Act. (Stats. 1923, p. 702; 1 Deering’s Gen. Laws, p. 864, Act 1970.) It appears that he was tried upon this charge in the Superior Court of Los Angeles County and was acquitted, the trial being before the court sitting without a jury. Notwithstanding the acquittal, the Adult Authority proceeded upon charges that he had in fact been in possession of a gun and additionally that his conduct and attitude on parole did not justify that privilege. After a hearing the Authority revoked his parole upon both grounds. Thereafter petitioner filed in this court his petition for a writ of habeas corpus, claiming that his parole had been unlawfully revoked contrary to the provisions of Penal Code, section 3063, which provides that no parole shall be revoked without cause, which cause must be stated in the order of revocation. This court issued an order to show cause why the writ prayed for should not issue and there has been produced before us the record of the proceedings for revocation of parole. It therefrom appears that the charge of possession of a gun considered by the Adult Authority involved the same facts as were involved in the criminal prosecution in Los Angeles County, and it is fair to say that it further appears as to the second ground that it was based upon the same incident, It is the contention of petitioner that since he was acquitted in the criminal proceeding the acquittal was binding upon the Adult Authority in the proceedings for revocation and that for that reason there was no just cause for revoking his parole.