In re Hall

McCOMB, J. An application for a writ of habeas corpus has been filed by Don Edgar Burris on behalf of Monroe Smith Hall (hereafter called petitioner) alleging that he is being illegally detained at Folsom State Prison.

Facts: Petitioner was convicted of assault with a deadly weapon, the maximum penalty being 10 years’ imprisonment (Pen. Code, § 245). He entered state prison on June 23, 1954, and on November 23, 1959, his term was fixed by the Adult Authority at eight and one-half years, with the last two and one-half years on parole. His tentative discharge date was set for December 23,1962.

On June 25, 1960, he was released on parole. While on parole he was arrested on suspicion of murder, was subsequently tried and found guilty of second degree murder, and on October 8, 1962, was sentenced to prison for the term prescribed by law, the sentence to run consecutively from the term he was then serving.

On October 12, 1962, the Adult Authority cancelled his parole for violation of two conditions: (1) conviction of murder and (2) associating, without permission, with a former inmate of a penal institution; and it refixed his term at the maximum until further order.

Petitioner appealed from the judgment on the murder conviction. This court, finding the evidence insufficient as a matter of law to sustain his conviction, reversed the judgment (People v. Hall, 62 Cal.2d 104 [41 Cal.Rptr. 284, 396 P.2d 700]) on November 25, 1964. He was retried and found not guilty on January 27, 1965.

On or about January 28, 1965, petitioner filed a petition for writ of habeas corpus in the Los Angeles Superior Court. The sheriff was ordered to deliver petitioner to court on February 11, 1965, but for some reason that is not entirely clear from the record delivered him to Folsom instead. The matter was continued so that the Attorney General could ap[117]pear for the Adult Authority, and several hearings were had at which petitioner was not present hut was represented by counsel.

At the hearing on April 6, 1965, the court again continued the matter to June 8, believing that it would be in the best interest of both petitioner and society to allow the Adult Authority a reasonable time to facilitate his reentry into the community. Petitioner dismissed his petition in the superior court and filed his present petition here.