In Re Peterson

14 Cal.2d 82 (1939) In the Matter of the Application of CARL PETERSON for a Writ of Habeas Corpus.

Crim. No. 4217. Supreme Court of California. In Bank.

July 25, 1939. Jerome L. Schiller for Petitioner.

Earl Warren, Attorney-General, William F. Cleary, Deputy Attorney-General, and A. E. Bagshaw, District Attorney, for Respondent.

EDMONDS, J.

[1] Ordinarily, the purpose of a writ of habeas corpus is to procure one's discharge from custody alleged to be illegal. In the present case, the petitioner, an inmate of the state prison at San Quentin, is demanding the right to reject a parole granted to him by the board of prison terms and paroles under the indeterminate sentence law. (Sec. 1168, Pen. Code.) Although petitioner claims the further right to an absolute discharge from custody, logically, his primary contention would require an order remanding him to the custody of the warden for the remainder of the sentence originally imposed upon him. That an extraordinary writ may be used by a convicted prisoner to compel [84] the execution of his sentence was decided in In re Collins, 8 Cal.App. 367 [97 P. 188].

The petitioner's unusual position is occasioned by the fact that before his difficulties in this state he was convicted of a felony in Texas for which he was sentenced to a term of 30 years. Later he escaped from the Texas prison to which he was committed and came to California where, in 1935, he was charged with the crime of burglary in the second degree after having been previously convicted of a felony. The State of Texas having waived extradition, he was tried, convicted, and sentenced to the state prison for the term prescribed by law. (Sec. 1168, Pen. Code.)

In due time the board of prison terms and paroles fixed his term of imprisonment at 7 1/2 years, the last two years of which were to be on parole "to the custody of the Texas authorities". When he was eligible for parole, but still in custody at San Quentin prison, an agent of the State of Texas served a warrant of extradition, issued by the Governor of California, upon him. The return of the warden to the writ of habeas corpus by which it is sought to stay the execution of that warrant, states that unless otherwise ordered, by this court, he will deliver the petitioner to the agent of the State of Texas as directed by the governor.