*1 true did not involve consent It is that ease last cited jurisdic- generally held in other decree and that it has been power modify vary equity or tions that a court of has no stipulation parties. the terms of decrees entered validity general in its conceding But distinction application decrees, no upon principle there is reason such deny power performance the court’s to extend the for time respect which exists simple merely with to a contract because it is embodied in a consent decree of the court. appellant attempted good comply faith to with provisions performance of the decree. full She offered
eight days required. Indeed, after time com the finance pany accept time refused payment all charges principal, interest and claimed itby insisted retaining the property debtor’s notwithstanding the clear showing that gross Mrs. Leslie’s default was not the result negligence, duty. or of a wilful or fraudulent breach of There respondent no evidence that the any suffered substantial prejudice delay as a result of the compensation or that full could not have been made the delay. Under cir these it duty cumstances was the grant of the court to appellant the sought. relief she judgment is reversed. J.,
Shenk, Houser, J., and Curtis, J., concurred.
Rehearing denied. No. 4217. July 25,
[Crim. 1939.] Bank. Application the Matter of CARL PETERSON for a Writ of Habeas Corpus. *2 for Petitioner.
Jerome L. Schiller Dep- Warren, Attorney-General, Cleary, William F. Earl Attorney, uty Attorney-General, Bagshaw, and A. E. District Respondent. for EDMONDS, Ordinarily, purpose writ of of a J. procure discharge custody al corpus is to one’s from
habeas illegal. present case, petitioner, In an leged to be demanding prison Quentin, San inmate of the at reject parole granted by right to him of the board paroles prison under the indeterminate terms sentence Code.) Although petitioner (Sec. 1168, Pen. claims law. custody, right discharge absolute to an further require primary an contention would order re logically, custody of the warden for the remainder manding to the him imposed upon originally him. That an ex the sentence of by a convicted com- may be used traordinary writ pel the execution of his Collins, sentence was decided in re App. 188]. petitioner’s position unusual by fact is occasioned that before his in difficulties this state he was of convicted felony in Texas for which he was a term 30 sentenced to of years. escaped Later he prison from the he Texas to which was committed and where, 1935, came to California in he was charged with burglary the crime degree of in after the second having previously felony. convicted of The State having Texas extradition, tried, convicted, waived he was prison sentenced to prescribed the state for the term by (Sec. law. Code.) Pen. due paroles time the board of terms and fixed
his term imprisonment years, years the last two 7% of which were to parole custody “to on of the Texas authorities”. eligible When he parole, was still custody Quentin prison, at San agent an of the State Texas by served a extradition, warrant of issued the Gov- ernor California, upon him. The return of warden corpus the writ of sought stay habeas which it is the execution of warrant, states that unless otherwise *3 ordered, by court, this will petitioner he deliver the to the agent of the by governor. State of Texas as directed the principal point urged by petitioner challenges the the right of the board of paroles terms and to terminate imprisonment his parole by under conditions accepted not argues him. He parole that aas is not a termination of imposed, the sentence a continuance of that sentence particular by under conditions fixed required the board and by convict, to be only fulfilled the it is effective when ac- cepted upon and cannot be forced him without his consent. support contention, by of per- this he relies analogy upon regard tinent rules which have been established in to execu- pardons. tive
It long has been held that by consent the prisoner prerequisite validity is a to the of a conditional pardon be may objectionable cause its terms more be than punish the (United Wilson, ment fixed the sentence. v. States 7 Pet. , 150 L. Ed. and see cases cited in annotation, 52 [8 640] 835.) A. L. R. The same conclusion has been reached in Cali Many years ago fornia. effectual, this court held that to be pardon accepted by a conditional must be prisoner. (Ex the parte Marks, Rep. 64 29 Pac. 49 684].) Am. [28
85 signify military term a “parole” originally was word' if that war prisoner promise of a of honor or ing the word conditions, such with certain released, comply he will he be As used captors. against bearing arms refrain from as to release signify the to term has come penology, the imprisonment expiration term prisoner prior of his a during the continuing good behavior upon his conditioned characteristics, there essential of the term. its remainder par distinguished from a conditional fore, parole cannot be a fixed upon of a convict the release Bach constitutes don. imprisonment expiration of his term conditions before hold analogy to upon this many courts have drawn and effective. accepted be parole must likewise be proffered ( 991]; Pac. 396 Hawkins, 10 Cr. parte Okl. [136 Ex 288]; Fuller Taggert, 12 Cr. 439 Pac. parte Ex Okl. [158 R. A. Rep. 17, 45 L. 146, 82 Am. St. State, 122 Ala. So. [26 A.R. 1009, L. Patterson, Pac. Re 94 Kan. ; [146 502] 1915F, 541]; W.N. D. 416 Colcord, 49 parte Ex S. [207 90, 138 Pac. Goddard, 69 Or. 213]; State v. Penal 1168 of the 146].) 1916A, Section 243, Ann. Cas. board, and rights duties of Code, which defines upon it empowers such conditions as parole prisoners it to require may proper, not authorize board to deem does parole by it, accept and under ordered applied cited, in the authorities principles stated and petitioner prerequisite to his release consent of the parole.
However, conclusion does petitioner this not entitle discharge custody an from time, absolute for he the board’s order cannot convert into an unconditional merely parole by rejecting the condition attached. In re parole, order of he renders jecting the bound to serve himself unexpired term of his sentence as now fixed subse or is, therefore, petitioner It quently modified. ordered that discharged custody by virtue of the warrant of extra custody respondent remanded to the dition war den. *4 Langdon, J., Curtis, J.,
Houser, J., and concurred. Dissenting. J., I dissent. SHENK, herein, Quentin part his return the warden of San As a original the extradition signed has filed warrant of -by 86
the Governor of January this state on 17, 1939, directing and petitioner that the be delivered to the Texas authorities. It is settled that the exercise of the discretion executive to issue the in may inquired extradition warrant be into 691, corpus habeas proceedings. (Hyatt People, 188 U. v. S. Sup. 456, 406.) Jur., p. Ct. 47 Ed. 12 657]; [23 L. But it has been not many may held times that the be deemed to have a voice in matter of extradition. the (Roberts Reilly, 291, v. 116 29 Ed. Sup. U. S. 80 Ct. L. [6 People 544]; Hagan, ; v. 34 N. Supp. Misc. 85 Y. 475] [69 People Klinger, v. 42 R. 799, 319 275 E. L. Ill. N. A. [149 ; note, 42 585; A. R State Saunders, L. v. 288 640 581] Mo. See, also, S. W. Carpenter 128 Lord, [232 88 v. Or. 973]. 577, Pac. 1918D, 674, L. R A. 680, note].) [171 Con and sequently, there seem no necessity would to be in case this to invoke corpus the inverse function of writ the of habeas investigate question petitioner may whether the ex preference Quentin ercise his remain in San prison. legal duty fugitive justice The to extradite a requisition imposed by IV, from sister state is article 2, (Taylor section of the United States Constitution. Tain- v. tor, Hall, (83 S.) 287]; 16 Wall L. U. Ed. State v. [21 Rep. Kan. 338 St. 200], Am. cases and cited.) leading Taylor Taintor, The ease of supra, is to duty not, however, absolute, effect that the is and that asylum may any the laws of the state first be satisfied for penal provisions. legislature of its infraction of this (Stats. 1937, p. 1581), in adopting state in 1937 the Uniform Act, added section Criminal Extradition 1553.1 to the Penal prosecution if providing that a criminal has in- Code fugitive against the under the laws of this stituted state and Governor, with pending, is still consent of the at- may him on surrender demand of torney-general, the execu- him another or hold authority of until tive he has discharged or and convicted served his sen- been tried duly state. The Governor has this tence in issued ex- attorney-general demanding is in warrant tradition be the order carried out." proceeding cases tend to establish cited that the foregoing present authority is to the effect that when Governor weight in by statute, discretion so vested him duly exercised has judicial investigation remaining question no there They seem little proceeding. leave corpus habeas *5 con- petitioner’s adversely question said to resolve the authorities executive tentions when it is considered account on the demands have determined that have laws penal of its prisoner’s infractions fully satisfied. subject remanded prisoner should be my opinion of extradition.
the warrant July 26, 1939.] F. No. 16205.
[S. Bank. CALI Respondent, THE ANGLO DeGRAF, GERALD FRANCISCO BANK OF SAN FORNIA NATIONAL Corporation) al., Appellants. (a et