In Re McCready

RICHARDS, J.,

pro tem.

A writ of

habeas corpus

was issued upon the petitioner’s application and hearing had thereon.. The admitted facts of the case are these: During the year 1917 the petitioner pleaded guilty of the crime of rape in the superior court of the county of Los Angeles, California, and by the judgment of said court entered upon such plea was on August 1, 1917, sentenced to an indeterminate term in the state prison at San Quentin of not less than one year nor more than fifty years; and was on August 3, 1917, confined in the said state prison under such judgment and sentence. After serving therein for a- period of about ten months, the petitioner herein applied for a writ of

habeas corpus

to the district court of the United States for the northern district of California, claiming that said judgment and sentence were void, for the reason that the offense to which he had plead guilty was committed prior to the taking effect of the statute providing for indeterminate sentences. The said district court returned the petitioner to the custody of the warden of the said state prison pending the determination of that matter; and thereupon and on May 21, 1918, the petitioner herein was taken before the superior court of the said county g£ Los Angeles and was there and by the judgment of said court resentenced to be imprisoned in said state prison, for a term of twelve years; and on May 25, 1918, was again received and retained in said state prison by virtue of said second judgment and sentence. Thereafter and on August 23, 1918', the said district court of the United States dismissed the said application of the petitioner for a writ of

habeas corpus.

Thereafter and on October 25, 1918, the petitioner

[516]

filed the pending application for a writ of

habeas corpus

in this court.

Two points are made by him upon the hearing thereon. The first of these is that the first judgment and sentence of the petitioner being void under the authority of