In Re O'Malley

ADAMS, P. J.

Petitioner, seeking his release from imprisonment in the California State Prison at Represa, filed herein a petition for a writ of habeas corpus, which writ was issued. A return thereto was filed, and questions of fact being raised thereby, the Honorable Raymond T. Coughlin, a judge of the Superior Court of Sacramento County, was appointed referee to take testimony regarding same. The report and findings of said referee have now been filed, and the cause submitted for determination.

The transcript of the hearings before the referee, and his findings, reveal the following: Petitioner was convicted in the Superior Court of Los Angeles County, and was received at the prison on June 5, 1931, under sentence of one to fourteen years. On August 16,1935, he was granted a parole, and his parole and sentence were both fixed to expire on March 5, 1936. Under the terms of the parole he was permitted to leave California and take up his residence in the State of New York, it being provided that his monthly reports should be made to a parole officer of that state, in New York City. O’Malley accepted employment with one McConnell in Brooklyn, New York, but on or about September 1, 1935, this employment was terminated with the consent of the parole officer of New York to whom petitioner made his report, and

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said officer assisted him in securing employment as a ship’s cabin boy with the Colonial Steamship Company, operating between New York and ports in New England. Since in the course of such employment petitioner would necessarily be absent from the city of New York for periods sometimes extending to two weeks, it was arranged with the New York parole officer, on the latter’s suggestion, that O’Malley should execute monthly report forms in advance covering the balance of his term, said forms to contain an estimate of his expected earnings and expenditures.

On or about March 25, 1936, after the date upon which O’Malley’s parole and term were fixed to expire, he was arrested in Newton, Massachusetts. The Chief of Police of Newton advised the warden of the prison at Represa, and asked if 0 ’Malley was wanted by California authorities. Mr. Coxe, the California State Parole Officer, answered and advised the Newton chief of police that petitioner had violated his parole by leaving his place of employment in New York without the permission of the New York State Parole Department, but suggested that the prisoner be prosecuted in Massachusetts, and, if found guilty, be committed to the Massachusetts penitentiary with which the California authorities would then lodge a detainer and effect his return to California as a parole violator upon completion of his term in Massachusetts. On April 8, 1936, the Newton chief of police wrote to Mr. Coxe that O’Malley had been convicted and sentenced to serve one year in the House of Correction, but that an appeal had been taken from such judgment; and that if a warrant of detainer were sent to the writer he would lodge it against petitioner. This was not done.