In Re Nelson

SLOANE, J.

The petitioner claims to be unlawfully imprisoned and restrained of his liberty in the state prison at San Quentin.

He is held in custody in said prison under a judgment of commitment on a sentence of fifteen years for robbery. He was received at the prison on November 1, 1907. The full term of his sentence will not expire until November 1, 1922.

Under section 1588 of the Penal Code, however, it is directed that every convict who shall have conducted himself in conformity to the prison rules and requirements shall have deducted from his term of imprisonment two months in each of the first two years, four months in each of the next two years, and five months in each of the remaining years of said term.

With the full allowance of credits thus provided for, petitioner’s term of imprisonment would have expired April 1, 1917.

Prior to that date, however, the prison board declared forfeited for alleged misconduct all credits the petitioner had earned or might thereafter earn, and the prison authorities have refused and still refuse him his discharge on the ground that the term of his sentence is not yet expired.

Petitioner seeks his discharge from custody under the writ of

habeas corpus

on the ground that he has been illegally deprived of his credits.

Section 1588 of the Penal Code, which provides for the allowance of such credits, also provides for their forfeiture for flagrant disregard of prison rules and discipline, under the condition that “such forfeiture, however, shall be made only by the board of directors after due proof of the offense and notice to the offender; nor shall any forfeiture be imposed when a party has violated any rule or rules without violence or evil intent, of which the directors shall be the sole judges.”

[596]

The petitioner here was charged with having participated in a riot within the prison, and on this charge he was found guilty and his credits, existing and prospective, were by the board declared forfeited.