Ex parte Wadleigh

Works, J. This is an application for a writ of habeas corpus. The petitioner is confined in the state prison under a conviction of felony, and sentenced to the state prison for five years, and that he pay a fine of one thousand dollars, and be imprisoned in said prison until said fine is satisfied, at the rate of one day for each one dollar of said fine. It is alleged in the petition: “ That during his imprisonment the said Wadleigh has faithfully fulfilled all the duties assigned to him, and has obeyed the rules and regulations of said prison, and has therefore earned the credits and deductions from his term of sentence allowed him by law; that, allowing said Wadleigh such deductions and credits so allowed him by law, the five years’ imprisonment ordered by said judgment has fully expired, and that said Wadleigh is now held in said prison, as petitioner is informed and believes, solely for the collection of the fine imposed by said judgment.” [520] The return of the warden does not deny the allegation of the petition that the petitioner has earned the credits and deductions allowed him by law, and that, allowing him such credits, he has served his. full term of imprisonment imposed as a punishment, but contends that the credits provided for by the statute cannot be allowed except upon some action of the governor authorizing it. So much of the judgment against the prisoner as provides for his imprisonment in the state’s prison for the collection of the fine imposed is void. (Ex parte Arras, 78 Cal. 304.) Therefore we must treat the sentence as one of imprisonment for five years. So treating it, the statute provides, in express terms, that certain credits or deductions from the term of imprisonment imposed shall he allowed for good conduct. (Supplement to Deering’s Codes, p. 490, sec. 20.) This statute does not require any action on the part of the governor, nor is any such action necessary. The statute, by its terms, entitled the petitioner to his discharge, the same as if his term of imprisonment had expired without such commutation as he is allowed by its provisions. The statute is not unconstitutional as an infringement of the power of the executive to pardon. It does not take away or interfere v ith such power in any way. The statute simply fixes the term of imprisonment in certain cases and upon certain conditions. This provision enters into and becomes a part of the judgment of the court below. When a defendant is sentenced to imprisonment for five years, this means five years subject to the deductions allowed from such time by law. The respondent asks upon whose order a prisoner is to be discharged under this statute. The answer is given by the above construction of the statute. If the term for which he is imprisoned has expired, allowing him the credits provided for, he is entitled to be discharged by the warden, as in any other case where the [521] term of imprisonment has expired, without an order from any other officer. This is subject, however, to the right of the board of prison directors to determine, before the expiration of his term, that he has, by subsequent misconduct, forfeited his right to such deductions. The petitioner is entitled to be discharged, and it is so ordered. Sharpstein, J., Fox, J., and Beatty, C. J., concurred.