MURDOCK v. << (1935)

After a hearing on habeas corpus before the superior court of Los Angeles county, respondent Shelby Murdock was discharged from custody under a warrant of extradition issued by the governor of California upon requisition of the governor of Montana. The matter is before us upon an appeal initiated by the people.

We are met at the outset with the question whether the case is one in which the people may appeal. If the right exists, authority therefor must be found in section 1506 of the Penal Code. Under this section the people may appeal from a final order of the superior court in a habeas corpus proceeding, discharging a defendant after conviction in a court of record of an offense prosecuted by indictment or information. If any of these conditions is lacking, the right does not exist.

It appears from the recitals of the warrant of extradition that respondent has been charged in the state of Montana with the crime of escaping from a state prison, a felony; that he fled from justice in that state and has taken refuge in the state of California and by the return to the writ it is shown that he is held under the warrant upon requisition for the same by the governor of Montana on and for a charge of escape from a state prison. These facts afford the basis of the extradition proceedings. They give to respondent a status of one charged with a felony in another state, of which he stands not only unconvicted, but untried. If we look no further, we have nothing before us which brings the case within the provisions of section 1506 because there has been no conviction of the defendant of the crime charged. We are asked by appellant to give consideration to the fact that respondent, at the time of his escape, was serving a term in a state prison after conviction of forgery, a crime prosecuted by indictment or information in a court of record. It is argued that this fact, which is admitted by respondent, brings the case within the provisions of the section. We have reached a contrary conclusion. The conviction that must be shown is one under which the defendant is held in custody and not a conviction of some other, unrelated crime. A contrary construction might extend the terms of the section to cases in which the accused had suffered a former conviction and perhaps had satisfied the judgment by serving out the full term of his sentence. The purpose of the statute is to give to the people the right of appeal from an order of discharge on habeas corpus which would nullify conviction of the accused and to withhold the right where the prisoner is discharged before conviction. The underlying reason is that there is no finality to a discharge on habeas corpus prior to trial, whereas a discharge after conviction would ordinarily operate as an acquittal. Separate convictions of other crimes unrelated to the custody from which the prisoner is discharged have nothing to do with the matter. Respondent is not held in custody upon a charge of forgery, his return to Montana is not sought upon a charge of which he has been convicted, nor is it demanded upon the basis that he is wanted there to serve out the remainder of a term in the prison from which he made his escape. With relation to the question of the right of the people to appeal in this proceeding, the case is no different from one in which the prisoner is accused for the first time, and then of the offense under which his extradition is sought. Therefore the order appealed from is final and may not be reviewed by this court.

The appeal is dismissed.

SHINN, Justice pro tem.

I concur: HOUSER, P. J. I dissent: YORK, J.