In re Rosegarten

SHINN, Acting P. J. The People have taken an appeal from an order of the Superior Court of Los Angeles County made on September 3, 1946, releasing Emanuel Eosegarten from the custody of the sheriff of Los Angeles County and the Adult Authority, Department of Corrections, after hearing upon a writ of habeas corpus.

Eosegarten was a parolee from the state prison at San Quentin; he was arrested in Los Angeles County upon charges of receiving stolen property and violation of the Deadly Weapons Act [Stats. 1923, p. 695, as amended; 1 Deering’s Gen. Laws, Act 1970]; thereafter, the Adult Authority made an order suspending his parole pending disposition of said criminal charges; thereafter, upon the report of the Chief [127]State Parole Officer the Adult Authority revoked respondent’s parole and ordered him into the custody of the warden of the state prison at Folsom; thereafter, respondent pleaded guilty to the offenses of receiving stolen property and violation of the Deadly Weapons Act and was sentenced to imprisonment in the county jail; after the expiration of said sentence respondent was held in custody by virtue of a warrant theretofore issued by the Adult Authority pursuant to the revocation of his parole; a writ of habeas corpus was issued upon respondent’s petition and he was discharged from custody by order of the Superior Court of Los Angeles County, following which order the People took the present appeal. When the matter was called for hearing the attorney general presented to the court and there were ordered filed a statement purporting to be in the handwriting of respondent and an affidavit of respondent transmitted with a letter from the Adult Authority, by which statement and affidavit respondent declared that he was surrendering himself to the custody of the Bureau of Paroles, Department of Corrections, pursuant to the order of the Adult Authority revoking his parole and that he thereby waived all rights regarding his custody by virtue of the writ of habeas corpus theretofore granted. The matter was continued at the request of respondent’s attorney for sufficient time to allow him to communicate with respondent; thereafter, there was submitted to the court a written statement of the attorney informing the court that he had been directed by respondent from the state prison at Folsom to abandon all proceedings for respondent’s release from custody.

The questions involved on the appeal have become moot and the appeal should not be considered on the merits.

The order would become final if the appeal should be dismissed and would direct the Adult Authority to release respondent from custody to which he has voluntarily submitted. This absurd result, which respondent, himself, does not seek, should be avoided. The order should be vacated. In a practical sense it has been nullified by respondent’s resubmitting himself to custody. Moreover, due to changed conditions, brought about by respondent’s voluntary act, the order cannot serve as a determination as to the lawfulness of respondent’s confinement as of the date the order would become effective. It could, therefore, operate to bring