Kirk

Appellant, Kirk, now an inmate of the United States Penitentiary at McNeil Island, filed his petition for a writ of habeas corpus in the District Court for the Western District of Washington. An order to show cause was directed to the Warden who demurred to the petition. The court below sustained the demurrer, denied and dismissed the petition and remanded petitioner to the custody of appellee. This appeal followed. Cf. Hayden v. Warden, 9 Cir., 124 F.2d 514 . Appellee Squier accepts the statement of facts in appellant’s brief as a “substantially correct statement of the pleadings and facts herein” and in the light of this situation we proceed to consider the legal question presented.

The petition shows that appellant was indicted in the Superior Court for Los Angeles County, California, on May 15, 1934, for the state crime of kidnapping. On his plea of guilty he was sentenced to life imprisonment and immediately committed to a California state prison to serve this sentence. The California Penal Code authorized such a life sentence to carry the provision “with possibility of parole,” in cases where a kidnapping victim had not suffered bodily harm and this language was inserted in…