In Re Forbes

California Court of Appeal Sep 30, 1930 No. Docket No. 1139.Published

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Holding. A paroled prisoner whose parole has been suspended due to a violation is not entitled to have time spent in a county jail for a subsequent offense credited toward his original state prison sentence, as he was not absent from prison by proper authority.

Issues

Whether time spent in a county jail for a new offense counts as time served on a state prison sentence when the prisoner's parole for the state sentence had been suspended.

Disposition. denied

Quotations verified verbatim against the opinion

“The contention that time shall run in favor of a paroled prisoner while outside the actual inclosure of the walls of prison depends, however, upon the contingency that he is lawfully at large.”

“His parole had been suspended, and during that period of time it cannot be consistently argued that he was absent by proper authority.”

[685]

THE COURT.

The petition for a writ of

habeas corpus

herein, in behalf of Sidney E. Forbes, represents to the court that the said Sidney E. Forbes is now illegally detained in the state prison at Folsom by the warden of said prison.

Without following the recitals of the different paragraphs of the petition, the facts may be summarized as follows: On the sixth day of May, 1926, Sidney E. Forbes was received at the state prison, having been sentenced for the crime of burglary. On the second day of July, 1927, the term of imprisonment of said Forbes was fixed at five years. On the seventeenth day of April, 1929, Sidney E. Forbes was released upon parole. On the twenty-eighth day of December, 1929, Sidney E. Forbes was arrested on a charge of burglary and violation of section 12, chapter 323, Statutes of 1925, and thereafter sentenced to six months’ imprisonment in the county jail in San Francisco. Thereafter, upon these facts being regularly presented to the board of prison directors, said board, on the twenty-fifth day of January, 1930, suspended the parole theretofore granted said Sidney E. Forbes and directed that he be retaken and returned to the actual custody of the state prison. On September 2, 1930, upon the expiration of the six months’ sentence herein mentioned, Sidney E. Forbes was returned to the state prison at Folsom, and thereafter, upon due notice, all credits theretofore earned and granted, and also all credits which would be possible for him to earn, were forfeited and disallowed by order of the board.

The petitioner’s contention for the discharge of Sidney E. Forbes is based upon the theory that the time Sidney E. Forbes was out of the actual confines of the walls of the state prison at Folsom serving his six months’ sentence imposed, as heretofore stated, in the county jail at San Francisco should be counted as time served upon his five-year sentence imposed by the state prison board on July 2, 1927. If such time should be counted, then and in that event the writ prayed for should be granted. If not, it should be denied.

Under section 1168 of the Penal Code and the decisions based thereon the time that a paroled prisoner is at large ordinarily counts the same as time served when within the actual inclosure of the state prison. The authorities

In Re Forbes

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THE COURT.

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