In Re Bost

I dissent from the above holding. I would not object to such a holding if, in order to make it, we had receded from the doctrine of Lloyd v. Superior Court, 208 Cal. 622 [ 283 Pac. 931 ], but if this case stands Bost is entitled to his liberty also. The only distinction between the cases is that in the Lloyd case a certificate of probable cause under section 1243 of the Penal Code was issued to him and he remained in the county jail until his conviction was affirmed. In the present case the defendant, accepted the time of appeal as a part of his sentence if the appeal were denied and went into the custody of the warden instead of remaining with the sheriff. At any time prior to the coming down of the remittitur the superior court could have granted this certificate and withdrawn the prisoner from the custody of the warden. (Sec. 1245, Pen. Code.) This was doubtless deemed unnecessary as prior to the time of affirmance the prisoner had already been returned to the custody of the sheriff. There is, therefore, but a technical difference between these cases, with the odds, I think, in favor of Bost, who accepted and did not merely bemoan his fate.

This is a petition for a writ of habeas corpus.

The petitioner, William J. Bost, was charged in the county of Los Angeles with the crime of murder. He was convicted of manslaughter and sentenced to San Quentin for the term provided by law. Pursuant to the judgment a commitment was issued on October 18, 1929, and on November 9, 1929, the petitioner was delivered into the custody of the warden at San Quentin. The petitioner took an appeal from the judgment and from an order denying his motion for a new trial. On August 4, 1930, the judgment and order were affirmed. (People v. Bost, 107 Cal. App. 550 [ 290 Pac. 513 ].)

On the trial of the petitioner one Fred A. Parman appeared and testified as a witness for the defendant. Thereafter Parman was indicted in said county for the crime of perjury, involving his testimony on the trial of the petitioner. Pending the trial of Parman and on November 23, 1929, counsel for Parman filed an affidavit with the trial court, pursuant to section 1333 of the Penal Code, setting forth that Bost was a material witness for the defendant Parman in the pending action; that Bost was confined in the state prison at San Quentin and application was made,…