*1 though dictum, being directly disapproved contrary regard the conclusion now stated in entitling to the conditions a minor child benefit of the presumption. award affirmed.
Gibson, J., Shenk, J., Curtis, J., Carter, J., Traynor, J., 0. Schauer, J., concurred. No. 4538. In Bank. June 7,
[Crim. 1944.] In STEWART, re ALBERT M. on Corpus. Habeas Petitioner. Stewart, pro. per., M. Albert *2 Lener, General, K. Attorney and David Kenny, W. Robert Attorney General, Respondent. for Deputy of the State is an inmate CURTIS, Petitioner herein J. now, and been ever He has Folsom, Prison California. at custody of the warden day June, 1928, in the of the 7th since Superior out of the by a warrant issued virtue of under and of the said warden By warrant Court of Sacramento. said put -to petitioner to be to cause Prison was commanded by provided the means then death in the manner and of the death sentence. for the laws of this state the execution 11, March petitioner and on Upon application of of of the State 1931, Rolph, Jr., as Governor Hon. James on Al California, “the of death commuted during imprisoned that he bert M. Stewart on condition Folsom.” the term his in the State Prison at of natural life date, petitioner At a after had served a considerable later sentence, life he period beyond years of time of his seven applied 1913 and section for under the Parole Law of in 1168 of Penal or statute was law Code. 3046 of corporated 1941, into Penal and section Code “no Parole of 1913 that provides said code as did the Law paroled prisoner imprisoned may under a life sentence years.” Section until at least calendar he served seven response In provides for the indeterminate sentence. Board of Prison petitioner’s parole, for application particular Terms him “due to the and Paroles informed your sentence, wording of said on a your effect ‘for no action can taken life,’ ... parole application your Board of Prison Terms case and Paroles until such removed from time as the record.” February 1944, petition
On herein petitioner filed his testing corpus for a his purpose writ habeas for the right hearing upon application to a before board for parole, rights.” Respon- and to to his “be restored lawful remedy dents question do not now applicability sought by petitioner right hearing upon to determine his a granted application said before the This court board. respondents writ. The have filed their return thereto. dispute substantially facts are not in and are as set out above. The only problem meaning before us is to determine the “during words life” used by term his as Gov- sentence., Rolph ernor commuting in his petitioner’s, Petitioner contends that there is no difference between term imprisonment for life one the natural life of the prisoner; that if life prisoner prison is sentenced to life, must his entire natural serve unless sooner pardoned placed or on and that had parole; intended that should serve his life sentence with- parole, out a simple would have been matter for him to have parole” inserted his order words or “without import. words of similar hand, On the other the Board of Paroles, Prison Terms its members as are advised attorney general, contends that some effect must be to the word “natural” Rolph’s used Governor order of commutation; that had Governor intended that ordinary sentence, should serve an as that term is *3 usually in judgments, used criminal he would not have taken pains to definitely im- state that “should be prisoned during life”; the term of his natural and had intended petitioner’s imprisonment Governor term of was parole, to be easily have, he could and doubt no have, would so stated in his order.
Our attention has in single been directed to a instance but which the “imprisonment during words his natural life” have been in Code, 671, used our Penal and in that is section which reads as follows : “Imprisonment any person Whenever is declared for life:
punishable by for a in imprisonment prison crime the state for a term less any specified years, not than and number of no limit imprisonment declared, duration of such is court pronounce judgment upon authorized such convic- may, discretion, in its to imprison- sentence such offender during ment life, years his natural or for any number not less than prescribed.”
Evidently term life,” “natural as used this section code, of the cannot given meaning by be claimed it for the Board of Prison Paroles, just Terms and it and as evi- with synonymous as in this it used section dent that for a moment one, think, contend we would “life.” No word sentenced, code of the under prisoner of the parole of the law to the entitled benefit would be state. hearing a cer- at this received evidence There been 12, July date Eolph copy an order Governor tified imprisonment, commuting a death follows: part reads as California, Jr., of the State “I, Eolph, James Governor hereby com- upon me, do authority conferred virtue for imprisonment Baymond West to mute the sentence of C. upon however, is made life, provided, this commutation for the following imprisonment His conditions: shall faith- he will During imprisonment, his his life. with, governing regulations all and fully comply the rules He penitentiary may imprisoned. will wherein he ap- will not imprisonment hereafter be released from and Paroles ply parole for of Prison Terms Board any Board, or to officer law to Commission or authorized accept parole, imprisonment nor will he from Board, such or Officer.” Commission Eolph for provide While each the two orders of Governor imprisonment prisoner, for the life of think we they would unreasonable hold that mean one and the thing same they imprisonment and that for life provide each hand, without On the West ex- other as the order pressly provides imprisonment for natural life without parole and simply the order question provides here imprisonment nothing life, says pa- for natural about role, a construction order reasonable to be latter would be that expressly limitation as to Eolph omitted therefrom. order of the West application expressly might add meticulously, and we laboriously, upon condition which the *4 prisoner accept was made apply will neither nor impose upon Had like limitations intention to commuting the order petitioner’s sentence, it is reason- expect able that he if not lan- used, would have the same guage is found in order, the West at least some word or words which would indicate that a similar condition was upon petitioner. Finding intended none, we 348 apparent
think it is that it was not the intention of Governor Rolph, in commuting petitioner’s sentence, impose as a condition of his order of commutation should to the law of the state. might
It further be observed that if the order of commu tation in petitioner’s ambiguous case is or uncertain, and is really capable of two equally constructions reasonable, a con struction should be it which would be favorable prisoner. law is humanitarian in character purpose and its object and is to mitigate rigor of the old penitentiary system. (Roberts Duffy, v. 629, 167 Cal. 634 260].) P. [140
It is a fundamental rule of law that no citizen should deprived liberty his for the violation of a law which is uncertain ambiguous (In Peppers, re 189 682 Cal. [209 P.896]; People Pace, v. Cal.App. 1089]) and P. [238 the same situation exists liberty where one’s questioned by an judgment order or plain which is not and certain in its (8 terms. CaLJur. 482; parte Ex Harrison, 63 § 299.) Cal. This is especially questioned true where order judgment or is susceptible of interpretations, two one of which is favorable and the other is rights adverse to the privileges person of the affected thereby.
It is our opinion, and we hold, peti therefore tioner is entitled to all the benefits and privileges pa role law the state and that it is duty of the Board of Prison Terms and Paroles to hearing him a under application filed with However, said board. this does not entitle to be custody released present from his the respondent warden of the Folsom, State Prison at Cali fornia, and he is hereby therefore remanded to the of said warden.
Gibson, J., Shenk, J., Carter, C. J., con- Traynor, J., curred.
SCHAUER, J. opinion I dissent. The does even mention controlling question as- this case. It sumes, without benefit of legal basis, that, factual or unless expressly provided commutation, otherwise the petitioner legal has status no more restricted than that prisoner of a (twice felony) convicted of who been sen- tenced to a term imprisonment Having made such life.
349 is to us before only problem declares, “The assumption of his ‘during the meaning of the words determine commut- in his Rolph life’ as used Governor problem statement sentence.” Such ing petitioner’s to case. wholly inadequate this in governor, of a prerogative function or If it were the which sentence, the sentence to vacate commuting a death a new pronounce and to the court had things had if in case those commitment, and issue a new opinion law in the done, been then the discussion of mat- But no such the matter hand. might pertinent to ter is this court. before court of mur- superior
This convicted was by the degree. the law enacted der the first Pursuant people state, through representatives, their chosen of this duly issued a The court petitioner was sentenced to death. “Now, following language: commitment which contains the you, the said Sheriff Therefore, this warrant is to command California, to take County Sacramento, your Stewart, Zephic alias custody into the said Albert M. M. Saunders, who answers his true name to be Albert Stew- art, confinement, and keep safely and to him and in close days to-wit, within ten judgment, from the time of this June seventh, custody of A.D. him into the deliver Warden Folsom, of the State Prison at in the State of Cali- fornia, and at the said the same time deliver this warrant Warden. You, Folsom,
“And the Warden of the State Prison at State of California, hereby are ordered commanded judgment by receiving your execute the said into Saunders, the said an- Stewart, Zephic Albert M. alias who Stewart, swers his keeping true name M. Albert safely him and in Friday, close confinement until the 17th day August, 1928, upon day, D. which A. between (9) (6) you hours Nine p.m., o’clock a.m. and Six o’clock him, will Stewart, take Zephic said Albert M. alias Saun- ders, Stewart, who answers true name to be Albert M. place of execution within the walls of the said State Prison Folsom, at California, State of hang and then and there him by the neck until he be dead.” above-quoted provisions truly of the commitment fol- effect,
low and, judgment pro- constitute the which was judgment nounced. It com- muted. aside that judgment; He did vacate or set pronounce different did a new and sentence. His him power premises was that section Constitution; e., power article YII of the state i. “the reprieves, pardons, sentence, and commutations of after con- viction.”
Petitioner in prison still remains under the sentence im- *6 by posed superior the and by court the commitment issued by that court. It is of only judgment the force the court’s the authority by peti- the evidenced commitment that custody; tioner is held in the force of the commutation is that he hanged. has not been The commutation sentence in operates, effect, stay portion as a mere of execution of that the required petitioner sentence put which to death. The language employed by in Rolph effecting Governor the ambiguous any degree. seems not or uncertain to is, It in fact, a clear and concise statement. It executed by the Governor on justices recommendation of four associate of this court. It reads as follows: the “As Honorable Jus- signed tices who the letter are familiar with the facts of the by case as the record, disclosed I myself consider to bound act favorably upon their do, recommendation and therefore, commute the imposed sentence of death upon Albert M. Stew- on art condition imprisoned during he be the his natural life in the Prison at Folsom.” above-quoted
The commutation is characterized as much by language which is by not used as that which is used. The says, Governor “I. . . commute the sentence of death imposed upon Albert M. Stewart.” say, He “I does commute to imprisonment the sentence of says merely, death.” He life “I . .. commute the imposed upon sentence death Albert M. Stewart on condition imprisoned during that he be term of his in life the State Prison at Folsom.” The word legal “commute” in proceedings in criminal is cases ordinarily express used with context to the substitution for penalty one lighter. another is Here, which it is obvious Rolph Governor suspension used it to denote of execu portion of that required of the sentence which otherwise' —and, save for continuing suspension, requires— still put suspension death. But is expressly subject made impri's the “condition that he be in the State Prison during term of his natural life oned is that controlling in the case point at Folsom.” The “during term of his natural imprisonment imposes; it is a not a sentence which the Governor life” is continuing on the commuta condition concurrent upon Albert M. Stew tion of the death moment that Albert M. by dependent. art” court is of his “imprisoned the term Stewart ceases Folsom,” in Prison at that moment the State then remains the commutation ceases and judgment pro penalty specified to the whole of the superior court, judgment under which nounced in prison awaiting except stayed detained execution suspended by the commutation. language used opinion reference assertedly a commutation issued Raymond justify
one apparently attempt C. West an the conclusion comparison reached the instant ease language language used in this commutation with the used in that one. The rele- slightest West case has not the vancy or materiality language case at bar. Neither used that case in any nor that used other case can alter *7 plain the import simple of the add used this case or words words which are not used.
Before the commutation petitioner was issued the was un- der pay sentence to penalty. required the The extreme law that he be custody held in put until he was This to death. actually was imprisonment power without life for of The commutation is in the bounty charity nature of a or from governor. the The opinion treats the matter though it were the function of the commutation to take away or rights limit some petitioner the would other- wise have and giving construes the him all commutation as rights which are unequivocally negatived. not That is not at all its function nor is the basis of construction tenable.
The commutation starts against on a man operating whom the sentence of death grants It merely become final. some privilege or substitutes some penalty lesser or releases the subject from part some of im- which has been penalty the posed. petitioner being The custody was to held in which was endure until his death. That imprisonment was life without right parole of imprisonment but it the “term was not for
of natural life” his natural life term was to be because Rolph’s All that com- cut short his execution. purports conditionally peti- to is to relieve the mutation do cutting It still leaves tioner of the short his natural life. right petitioner parole for life without commutation, custody made but, operation of that for term of his life” instead of until perdure to “the the term of his natural life is cut short execution. legiti- purport to, commutation as written does not and cannot mately to, imprison- construed a sentence of substitute life parole ment of death place to of the sentence with its imprisonment parole concomitant of without until death.
The burden is not on the to that the commuta- show any deprived right parole or of petitioner of the right. burden, rather, petitioner other is on the to show rights privileges what or on him. commutation conferred issued, petitioner Before the commutation have was did the right eligible to If be held ? he did have right then he possess does not it now unless the granted obviously did not it to him. the commutation And declared, “I it to him: . . . commute the Governor imprisoned sentence of death on condition that he be ... term of Prison at his natural life the State com- Folsom.” Since the sentence which the Governor was muting imprisonment for the carried with it without petitioner’s full term of been life until that life was have contemplated by by execution, cut short if only effect cutting the Governor short petitioner was relieve the by execution, of the term of his it difficult expression, offending tautologi- conceive of form of cally, accomplish which would apt precisely be more language effect than the used. Governor which was relieving appointed an petitioner from execution on day; e., permitting i. “the term he was live out ’’ bounty If his natural life. that was the full extent of necessarily the Governor meant intended confer imprisonment for the full perdure would portion of his natural life instead of *8 That elapsed such term as to the execution. prior would have more, import —no no of the words which were less—is used.
I imply any do not as to whether herein view whatsoever granted a commutation petitioner should or should not be eligible parole. entitle him to be considered would not, court. time, problem That is at least at this a pardoning The vests the and com- Constitution California exclusively subject only mutation powers governor justices of this majority to the recommendation of court cases “where the convict has been twice convicted (Cal. felony.” Const., VII, 1.) art. This should court § be as zealous in protecting legislative the executive and government against judi- branches encroachments cial in guarding against as it is its trespass own field others. may apply governor this ease to the for a
new and different him giving privilege wants the governor, the constitutional mentioned, above is vested with power such determine application subject to the recommendation of a justices of this But court. this court should not invade province governor by reading into the commuta- issued privilege which he did not write. discharged writ should be and the remanded
to the of the warden of the State Prison at Folsom to be held there “during the term of his natural life” under the sentence of death as conditionally commuted, and not un- der assumed new and different sentence of so-called life imprisonment subject right of
Edmonds,. J., concurred.