delivered the opinion of the Court.
This is an appeal from the denial of petitioner Watson’s request for habeas corpus, C.R.S. 1963, 60-1-10.
The matter arises because of an extradition request by the State of California. The facts are as follows: Petitioner Watson was serving a California prison sentence in 1957. He escaped to Colorado and was involved in a murder. He returned to California before being apprehended by Colorado authorities and was reincarcerated in the California prison. In late 1957, petitioner was extradited to Colorado from California to stand trial for the murder charge. That extradition was accomplished through an executive agreement between the Governors of California and Colorado. The agreement provided in pertinent part:
“IT IS HEREBY AGREED by the undersigned, Governor of the State of Colorado, that in the event said Arthur Jerome Watson * * * shall be acquitted or shall receive a sentence of less than death following a trial in the courts of the State of Colorado, or the prosecution in the State of Colorado is otherwise terminated, said Arthur Jerome Watson * * * will be returned to the State of California at the expense of the State of Colorado, and that the Governor, or other acting executive authority of this state, will upon demand of the *437 executive authority of the State of California surrender said Arthur Jerome Watson * * * to the duly authorized agents of the State of California.” (Emphasis added.)
Upon the completion of his extradition to Colorado, petitioner was tried on a charge of first-degree murder. He was convicted. We reversed that conviction and remanded the case for retrial.
Kostal v. People,
I.
At the outset, it is important to note that, despite the fact that California’s request for extradition invokes § 2 of the Uniform Criminal Extradition Act, C.R.S. 1963, 60-1-2, this case involves an executive agreement between two states, and is therefore controlled by § 5 of the Uniform Criminal Extradition Act, C.R.S. 1963, 60-1-5. Section 5 was specifically designed to deal with the problem of extraditing and returning those prisoners who are already in the custody of the authorities of another state by reason of imprisonment or awaiting trial. Commissioner’s Note, § 5
Uniform Criminal Extradition Act, 9
U.L.A. 296 (1957);
cf In Re Whittington,
II.
Petitioner’s removal from California as well as his present extradition to California from this state are governed by § 5 of the Uniform Criminal Extradition Act, C.R.S. 1963, 60-1-5:
“Extradition of persons imprisoned or awaiting trial. — (1) When it is desired to have returned to this state a person charged in this state with a crime, and such person is imprisoned or is held under criminal proceedings then pending against him in another state, the governor of this state may agree with the executive authority of such other state for the extradition of such person before the conclusion of such proceedings or his term of sentence in such other state, upon condition that such person be returned to such other state at the expense of this state as soon as the prosecution in this state is terminated.
“(2) The governor of this state may also surrender on demand of the executive authority of any other state any person in this state who is charged in the manner provided in section 60-1-23 with having violated the laws of the state whose executive authority is making the demand, even though such person left the demanding state involuntarily.” (Emphasis added.)
The executive agreement which brought petitioner to Colorado in the first instance was authorized by the quoted section of the statute. That agreement, of course, set forth the course of conduct for both parties. The statute, however, sets forth the course of conduct which the Colorado governor must follow. As we view this statute and its predecessor, C.R.S. ’53, 60-1-5, which was identical in every respect, it is both a grant and limitation of executive authority. The governor of this State was authorized to enter into the executive agreement with California for the return of petitioner Watson, C.R.S. 1963, 60-1-5(1). His surrender
*439
could be made to that state,
id.
(2). This grant of authority is addressed to the governor’s discretion, for it is couched in language which is permissive not mandatory.
Thompson v. Bannan,
As the recitation of the facts reveals, the surrender to the executive in California which the statute contemplates was not made at the time petitioner’s Colorado proceedings were terminated,
Watson v. People,
III.
The question presented by petitioner is a novel one. The cases cited by the People in their brief rebut the doctrine of waiver as applied to the situation here. The only applicable case which the petitioner cites holds that, when the governor of the state of origin does not make timely demand, that state has waived its jurisdiction.
People ex rel. O’Connor v. Bensinger,
IV.
The legislative history of the clause requiring that return be made “as soon as the prosecution in this state is terminated” provides no guidance on the meaning and *440 purposes of the clause, Uniform Criminal Extradition Act § 5, 9 U.L.A. 295-96 (1957). Nevertheless, we are called upon to decide the issue.
As we view the section under scrutiny, it is meant to serve several purposes for both the interests of the government and the constitutional rights of the defendant. Firstly, the provision placing the expense on Colorado of returning the prisoner to the state from which he has been taken is in lieu of the savings in cost for the prisoner’s retention in this state and guarantees that these costs are kept to a minimum. This is an affirmative duty that the legislature has imposed in the executive. See also C.R.S. 1963, 60-1-12. Secondly, the clause is clearly intended to provide a standard to the state of origin, informing that state as to the proper time for demand. The statute also makes it obvious that the executive could not make return before the prosecution proceedings are terminated. Thirdly, therefore, the clause gives the governor of Colorado a standard for determining when a demand for return is both timely and proper. Cf C.R.S. 1963, 60-1-4. These are the governmental interests which are furthered by the statute.
The protection of prisoner interests is discernible from the holdings of some federal courts as well as a common sense consideration of the impact of “passing around” prisoners from one jurisdiction to another,
e.g., Shields v. Beto,
*441
On the facts revealed by petitioner’s counsel — not disputed by the People — the effect of the failure to return this petitioner to California when his Colorado proceedings were terminated illustrates how disregard for the mandate of this section can have serious consequences. Petitioner’s appeal of his California conviction on which he was being held was dismissed for failure to pursue it to completion. Also, while Colorado would perhaps be willing to give this petitioner credit against his Colorado sentence for the time he would have served in California had he been promptly returned
(See Alire v. People, supra),
California does not allow credit for the eight years he has served in this state.
In Re Gullatt,
The legal authority of Colorado’s governor to make the requested surrender and return at this late date is beyond the authority provided both in the statute and the agreement. The arrest warrant being without the governor’s authority, it follows that the respondent, Sheriff of Fremont County, has no legal authority to hold petitioner.
The judgment of the district court is reversed. The cause is remanded to said court to make the writ of habeas corpus absolute and to release the petitioner.