In re Petrie

— I dissent for the reasons set forth in the dissenting opinion In the Matter of the Petition of Grady *135 Halcomb for a Writ of Habeas Corpus, ante, p. 126 [ 130 P.2d 384 ], this day filed.

Edmonds, J., concurred.

Petitioner’s application for a rehearing in Grim. No. 4422 was denied November 27,1942. Edmonds, J., and Traynor, J., voted for a rehearing.

— These two proceedings involve practically the same question of law. Each of the petitioners was originally convicted of a misdemeanor — Paul Bafford of petit theft and Bert Petrie of the charge of drunkenness — and while in the lawful custody of a peace officer under a judgment of conviction of the crime of which he was charged, each escaped from said officer. After his apprehension, each was convicted of, or pleaded guilty to, the crime of escape, and by a judgment of the superior court of the county in which the action was pending, each was sentenced to a term of imprisonment in one of the state prisons of the state. Each of the petitioners has applied to this court through separate proceedings in habeas corpus to be released from his said imprisonment, contending that he is illegally imprisoned by the warden of said state prison.

Bafford in the first instance was committed to the California State Prison at Folsom, but was later transferred to San Quentin where he remained up to the date of the filing of this present petition. Petrie was sentenced direct to San Quentin. Each of the petitioners was convicted under the provisions of section 107 of the Penal Code as enacted in…