In Re Bogden

FINCH, P. J.

Petitioner prosecutes this writ of

habeas corpus

to obtain his release from state prison on the ground that the term of his imprisonment has expired.

He was sentenced to a term of fourteen years’ imprisonment for burglary of the first degree. He was received at the prison July 7, 1914. He escaped therefrom December 7, 1914, and was returned thereto February 27, 1915. As a penalty for such escape, the state board of prison directors, on March 3, 1915, duly forfeited all credits earned and to ■be earned by him. He was also tried in court on a charge of having so escaped and was convicted and sentenced to imprisonment for a term of four years, the imprisonment to commence at the expiration of his term of fourteen years for burglary.

December 20, 1922, the Governor of the state commuted petitioner’s term of service to a total of ten years. The parts of the commutation material here are as follows: “The prisoner was punished once for his escape from prison by forfeiture of his credits amounting to five years and two months and was given a sentence of four years additional upon his conviction in court. . . . Unless Bogden is given relief through executive clemency he will not be eligible for parole until 1930. It was for this reason that a majority of justices of the supreme court and the peace authorities who prosecuted Bogden joined in recommending commutation of his sentence, as excessive. Now therefore, I, Wm. D. Stephens, Governor of California, do hereby commute the two sentences of the said John Bogden to a single term of ten years including time served.”

[379]

Petitioner contends that the Governor “aggregated his two sentences to one sentence of eighteen years, and commuted this to a sentence of ten years. The credits on aggregated eighteen years amount to six years and ten months, and the credits forfeited by the board of prison directors, on petitioner’s previous sentence of eighteen years, were five years and two months. Therefore, petitioner is entitled to twenty months credits on his previous sentence of eighteen years, and those credits shall be deducted on his present sentence of ten years, which was fixed by the Governor. Or, if petitioner’s previous sentence is legally dead, then any action of the state board of prison directors taken on his previous sentence is null and void, and the petitioner not having lost any of his credits on his present sentence of ten years, therefore, he is entitled to all his credit deductions which are allowed by law on his present sentence of ten years. ’ ’