The wardenof the state prison at Folsom, Charles Aull, made the following return to the writ herein:—

It appears from the foregoing return there were two convictions and two sentences of the applicant, Kirby, and it is argued that it was the duty of the court in pronouncing the sentences to designate that at the close of the imprisonment under the first sentence the imprisonment under the second sentence should commence; inasmuch as this has not been done by the court on the trial of Kirby, that the sentences ran concurrently, and the periods mentioned in both close at the same time.

Whatever might be the correct rule in sueh a case at common law, or in some of the other states where such a statute as exists here is not in force, we hold that the question herein must be and is determined by the provisions of section 669 of the Penal Code. Section 669 of the Penal Code is in these words:—

We are of opinion that this section is a mandate to the warden who holds the prisoner in custody, and by it he is informed that the imprisonment on the second conviction must commence at the termination of the first term of imprisonment.

*520 As the law is a mandate to the warden, that officer is empowered to examine the records of the court in which the prisoner was convicted, to ascertain which is the first and which is the second sentence. The records of the trial court will give him all the information required to enable him to act understandingly in the matter, whether in regard to attributing the credits to which the prisoner is entitled, or in determining the length of time during which the convict must be imprisoned; and should any application be made to the governor for pardon, we see no difficulty in the way of his ascertaining in which case he is called on to act. The records of the trial court are open and accessible to him, that he may obtain information in regard to the subject on which he is called to act.

We say that the records of the court will furnish all requisite information, for the reason that they will show which was the sentence pronounced on the first and which on the second conviction.

We cannot concur in the argument of counsel for the applicant, and are of opinion that in this case the imprisonment of the applicant must continue for the period of five years under each sentence, one period of five years following the other of the same length, shortened by such credits as he may be by law entitled to.

While we are convinced of the correctness of the foregoing, we think it proper to say that in the case of two convictions of the same person it would be right and proper that the court, in pronouncing its sentence upon the second conviction, should order and have inserted in its judgment a direction that the period of imprisonment on the second sentence should commence at the close of the period of imprisonment under the first.

Not having suffered such imprisonment, the prisoner is not entitled to his discharge, and he must therefore be remanded to the custody of the warden aforesaid of the state prison at Folsom.

So ordered.

*521 Searls, G. J., Sharpstein, J., McKinstry, J., and Paterson, J., concurred.

McFarland, J., dissented.

Rehearing denied.