Petition for writ of habeas corpus by William Wilson, wherein said petitioner, among other matters, alleges as follows:

Upon the presentation and filing of this petition this court ordered that a writ of habeas corpus as prayed for therein be issued. The return of said writ by the warden of the state prison sets forth that he held said William Wilson under two commitments issued out of the superior court of the county of Kings, one upon the judgment of conviction of date February 21, 1922, and the other upon the judgment of conviction of date August 12, 1925.

It is first contended by petitioner that the judgment of conviction entered by said superior court on the twelfth day of August, 1925, is illegal and void for the reason that the law does not compel nor countenance two distinct final judgments covering the same matter. This contention appears to be sustained by the ruling of this court in the case of People v. Mess, 65 Cal. 174 . In that action facts quite similar in principle to those in the present proceeding were before the court. It was there held that “the judgment of October 27, 1883, is a valid judgment, and that the defendant is legally in custody under it. It results that the proceedings subsequently taken in the superior court, looking to a resentence of the defendant, were void.” Assuming that the judgment of August 12, 1925, is void and the commitment issued thereon of no greater validity, there still remains the prior judgment of date February 21, 1922. The return of the warden in this proceeding shows that petitioner is held under a commitment issued under this judgment as well as upon the one issued upon the latter judgment. That being the case, his imprisonment is legal and he is not entitled to be discharged therefrom. It is true that petitioner claims that the commitment issued upon the second judgment is the “sole warrant” for the present detention, but the return of the warden shows otherwise.

In another portion of petitioner’s brief he states:

This statement we think in the main fairly sets forth the true status of petitioner’s imprisonment. The judgment of February 21, 1922, is valid. The order of the superior court of Sacramento County did not vacate it or annul it. The commitment issued upon this judgment, and by virtue of which the warden is holding petitioner, is legal and valid and constitutes a legal warrant on the part of the officer for the imprisonment of petitioner. His imprisonment would commence to run from the date of his delivery to the prison authorities under this commitment and he is entitled, at least, to credit for the time served thereunder from the date of his first delivery to the prison by virtue of said judgment of February 21, 1922, until the date when he was removed therefrom by order of the superior court of the county of Sacramento. As to the time spent in the county jail of Kings County under the judgment of date December 31, 1924, while he may not be legally entitled to credit therefor upon his imprisonment in the state’s prison, it is a circumstance which the state board of prison directors may well consider when fixing his time of imprisonment.

The writ is denied and the petitioner is remanded to the custody of said warden.

Langdon, J., Shenk, J., Seawell, J., Waste, C. J., and Richards, J., concurred.