In Re Allen

NOURSE, P. J.

This is an original application for a writ of

habeas corpus.

The petitioner is confined in the state prison at San Quentin under a judgment of conviction of murder in the second degree. He entered the prison on April 23, 1923, and on September 6, 1935, the board of prison terms and paroles passed

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a resolution granting him a parole to become effective after he had served twelve and one-half years of his term of sentence. This resolution was rescinded on September 25, 1935. The order granting the parole was conditional upon his compliance “with all the requirements of law, rules and regulations governing parole”.

On this application the petitioner contends that the order of September 25, 1935, is void because no cause then existed for a revocation of his parole; no cause was stated in the order of revocation; and no notice of the intended action was given the prisoner and no hearing thereon accorded him. The petitioner’s case is based upon the theory that he was “on parole” from the time the original resolution was passed and that the order of rescission took from him an existing, or vested, right without notice or hearing, and without due process of law. His case is founded on the unsound theory that a prisoner is “on parole’’ from the date when the board determines that a parole should issue at some future date, and that this “right” cannot be suspended or canceled without according the prisoner a trial on some legal “cause”.

A parole, as that term is used in section 1168 of the Penal Code, is a release from confinement within the prison. The power of the board is fixed in subsection 4 of this section as a power to provide rules and reflations whereby a prisoner who has served the period of time prescribed by this section, “may be allowed to go upon parole outside the prison buildings and inclosures”. In Webster’s Unabridged International Dictionary, second edition, the word “parole” is defined in its legal sense as follows: “A conditional and revocable release, upon his own recognizance or subject to supervision provided by statute, of a prisoner with indeterminate or unexpired sentence.” Thus a prisoner is not on parole until he is released from confinement in the prison, and, until this situation arises, there is no ground for the application of the rules relating to “revocation” of the parole, and no pertinency of the decisions covering “due process”, notice, and hearing. The situation here is that the action of the board is nothing more than a determination that it will, at a future date, release the prisoner on parole unless intervening circumstances should prompt the board to retain him in further custody. To reach that result, th'e board may either rescind the resolution or suspend the granting of the