I dissent.
In this case the following situation is presented. In 1936 petitioner was convicted in this state on several counts of extortion and kidnapping for the purpose of extortion and sentenced to three life terms to run concurrently. He served in a prison in this state until November, 1943. When he was *576convicted here, he was under parole commencing December, 1928, from Illinois, having been convicted of forgery in that state. The Illinois authorities had revoked his Illinois parole and filed a detainer request with the California prison authorities, inasmuch as his Illinois term had not been completely served. In March, 1943, the California authorities decided to parole petitioner, and in November did so, to the custody of Illinois, where he would continue to serve the Illinois term. The condition of the parole was that upon release by Illinois, petitioner would contact the California parole officer and abide by his instructions. The state does not deny that no detainer of petitioner was filed with the Illinois prison authorities. Petitioner was released by Illinois in 1947, and upon his refusal to submit himself to California parole officers, his parole was revoked. He went to Missouri where, after being taken into custody pursuant to extradition proceedings instituted by California, he was ordered released from custody by a Missouri court in habeas corpus proceedings. (Those proceedings are later discussed herein.) He went to Oregon, then to Washington, from which state he was finally extradited to California, where he is now held to complete his term since he violated his parole.
The majority opinion asserts that the judgment in habeas corpus proceedings releasing Kimler in Missouri is not res judicata because the same issues are not involved and the Missouri court did not have jurisdiction to decide the issues. Neither of those propositions is correct.
In connection with the Missouri habeas corpus proceedings, it is clear that the same issues were involved as are now presented, that is, the waiver by California of further jurisdiction over petitioner rather than, as claimed by the state, the sufficiency of the warrant in the Missouri extradition proceedings.
In the Missouri case, petitioner alleged in his application that he was being held on a warrant for violation of his California parole; that the Governor had issued a warrant for his arrest pursuant to extradition proceedings on the basis that petitioner was a fugitive from justice; that he was not a fugitive from justice for he was convicted and imprisoned in California, then he was granted what was “termed” a parole into the custody of the Illinois authorities and taken by them to Illinois; that no “hold order” was placed by California with the Illinois authorities; that when California “attempted to parole him into the custody of the Illinois *577authorities, that this act upon their part operated as a complete pardon for the crime he was sentenced for in California and served 7 years thereof, and that.they have no right or authority under the law or under the Constitution of the United States to extradite him as a fugitive from justice; that he has committed no crime since his release from the California State Penitentiary or the Illinois State Penitentiary, and is living the life of a clean, honest citizen, and for the State of California to be permitted to bring him back there and serve in the Penitentiary for the rest of his natural life would be cruel and inhuman punishment after once having pardoned him for his offense.” No contention was made that the request or warrant in the extradition proceedings was insufficient.
The return to the application for the writ rested on the extradition papers and that Kinder was a fugitive from justice.
The stipulated facts joined in by the extradition agent for California set forth the events 'heretofore mentioned, including the parole papers. They show that Kinder was convicted and imprisoned in California; that he signed the parole ticket of leave to Illinois; that thereafter he “was taken by officers and agents of . . . Illinois who handcuffed him and took him from the California State Prison at Folsom, with the consent and acquiescence of the parole authorities of California and returned him to . . . Illinois where he was again incarcerated in the Illinois State Penitentiary at Joliet until about the 9th day of July, 1947, when he had completed his sentence and was then discharged by the State of Illinois”; that he refused to submit to the parole officers in Missouri or accept a California parole. •
At the hearing it was shown that Kinder had already been convicted of the crime in California, rather than being merely charged with it; that a detainer notice had been filed by Illinois with the California prison authorities and no parole could be granted when such was the case. The judge questioned the California agent in regard to whether Kimler was only charged or had already been convicted, asking: “So he has already been tried and there has been a judgment on him, and the parole was based on that? From this Warrant it would appear there was a new charge against him. . . . I suppose there is not any question but that this is not a new requisition on a new complaint, but a requisition on this old matter? Mb. Bbennan (California agent): That is right. *578Mb. Hough: That is agreed, your Honor. There is nothing pending against him in the State of California, except that which has already been adjudicated. The Court : The Court orders the discharge of the petitioner from custody.” The plain inference is that the judge wanted to make clear that there was not a charge against Kimler other than the one of which he was convicted, thus indicating that he felt Kimler’s claim that California had waived any further claim over him under the conviction was well taken, and, as there was no new charge, the prisoner should be discharged for he was not a fugitive from justice. This is further evinced by the judge’s judgment of discharge where he stated: “The Court finds that the facts and circumstances are not sufficient to justify the surrender and extradition of the petitioner to the State of California and no sufficient cause for the detention of the said petitioner appearing, it is ordered by the Court that the Writ of Habeas Corpus be sustained cmd made permanent, and that the petitioner, Charles Walker Kimler, be, by Arthur Mosely, Sheriff of St. Louis County and Joseph B. Brennan, Agent of the State of California, discharged from imprisonment and detention for the cause aforesaid.” (Italics added.) The “facts and circumstances” referred to in the judgment indicate the delivery of Kimler to Illinois without any detainer other than some defect in the extradition warrant, and the judgment is presumed to be responsive to the claim made in the application. We may presume that the judgment was based upon the claims made in the pleadings rather than an unmentioned ground. (See Woolverton v. Baker, 98 Cal. 628 [33 P. 731].) Moreover, in considering the queries by the judge concerning whether the extradition was based on an old or new charge, it has long been the practice to treat a parole violator as a person charged with a crime in extradition proceedings. (See In re McBride, 101 Cal.App. 251 [281 P. 651]; cases cited 78 A.L.R. 424; 22 Am.Jur., Extradition, § 25.)
Thus, I have presented and decided in favor of Kimler in the Missouri proceedings the question of whether the delivery of Kimler to the Illinois authorities by California under the circumstances established that California had relinquished any further claim over Kimler even though he signed the ticket of leave. (See similar question considered: In re Marzec, 25 Cal.2d 794 [154 P.2d 873]; In re Whittington, 34 Cal.App. 344 [167 P. 404]; and People v. Bartley, 383 Ill. 437 [50 N.E.2d 517].)
*579The agent designated by California to receive Kimler in the Missouri extradition proceedings was active and participated in the habeas corpus matter. Although he did not have actual custody of Kimler (he was being held by a Missouri sheriff), he was named a respondent therein. He joined in the stipulation of facts and testified at the hearing. Under these circumstances, California was adequately represented in the habeas corpus cause.
The discharge of Kimler in Missouri must be treated as res judicata on the issue above mentioned, that is, that there is no longer any basis for California to imprison Kimler arising from his conviction here, and therefore he is entitled to a discharge in this proceeding. The general policy of ■ treating a discharge in habeas corpus as final has been established. “No person who has been discharged by the order of the court or judge upon habeas corpus can be again imprisoned, restrained, or kept in custody for the same cause, except in the following cases: 1. If he has been discharged from custody on a criminal charge, and is afterwards committed for the same offense, by legal order or process; 2. If, after a discharge for defect of proof, or for any defect of the process, warrant, or commitment in a criminal case, the prisoner is again arrested on sufficient proof and committed by legal process for the same offense.” (Pen. Code, § 1496.) In the instant ease it is clear that the Missouri proceeding does not fall within either of the two exceptions. It was not a case where the accused was discharged from custody for some defect in the process or trial proceedings. Further it is stated: “Every person who either solely or as a member of a court knowingly and unlawfully recommits, imprisons, or restrains of his liberty, for the same cause, any person who has been discharged upon a writ of habeas corpus, is guilty of a misdemeanor.” (Pen. Code, § 363.) This court has said on the subject: “A judgment of discharge upon habeas corpus may or may not be res adjudicata, but this will depend wholly upon the questions necessarily determined in the decision upon the writ. The rights of prisoners under the writ of habeas corpus were first crystallized in the English Habeas Corpus Act of 31 Car. II. By section 6 of that act, for the prevention of unjust vexation by reiterated commitments for the same offense, it was enacted ‘that no person or persons which shall be delivered or set at large upon any habeas corpus, shall at any time hereafter be again imprisoned or committed for the same offense by any person or *580persons whatsoever, other than by the legal order and process of such court wherein he or they shall be bound by recognizance to appear, or other court having jurisdiction of the cause. ’ In this there was not only no recognition of the principle here contended for by petitioner, but there was a distinct recognition of the contrary, in that it is declared merely that he cannot be again imprisoned for the same offense ‘other than by the legal order and process of such court, ’ etc. And in the Attorney-General etc. v. Quok Ah Sing, 5 P.C. 179, where a Chinese coolie was discharged the second time upon habeas corpus, solely upon the ground that he had been committed a second time for the same offense, contrary to the sixth section of 31 Car. II, the privy council, speaking by Lord Justice Hellish, said they could not agree with the construction which the chief justice put upon this section of the statute: ‘The principal object of the section seems to have been to prevent persons who had been brought up on a writ of habeas corpus and discharged on giving bail and entering into their own recognizance from being again arrested for the same offense and obliged to sue out a second writ. This appears from the provision by which the person discharged may be again arrested by the order of the court, wherein he shall be bound by recognizance to appear. . . . Though I think, however, it [section 6] can only apply when the second arrest is substantially the same cause as the first, so that the return to the second writ of habeas corpus raised for the opinion of the court the same question with reference to the validity of the grounds of detention as the first. ’ This is but another way of stating the proposition that the discharge upon habeas corpus operates as a bar and estoppel only as to the particular proceeding or process under review, and it is res adjudieata only upon the same question presented under the same state of facts. Thus it has been held that a discharge upon habeas corpus for failure of proof does not bar further prosecution upon another indictment. In In re Crandall, 59 Kan. 671, it is accordingly held that where a court discharges a petitioner because no offense was alleged for which he could be prosecuted, its order not only restores him to liberty, but terminates pending proceedings against him, and he cannot be again arrested or held in custody unless a new prosecution is instituted against him. So in State v. Holm, 37 Minn. 404, it was held that a discharge upon habeas corpus for defect of proof merely terminates the particular proceeding so that the party cannot *581be further prosecuted except by a new proceeding instituted upon sufficient evidence. And in the case of In re White, 45 Fed.Rep. 237, it is said: ‘To support the plea of res adjudicata, the burden was upon the relator to show that some issue had been heard and determined in his favor in the prior [habeas corpus] proceeding, of such nature as to constitute an estoppel upon a reinvestigation of the same question. ... In the absence of evidence, either upon the face of the record or from extrinsic sources, showing the prior discharge from arrest granted the relator was based upon a hearing and determination of some material issue, like that of identity, it cannot be held that anything is shown creating an estoppel against the proceeding now pending for the arrest and removal for trial of the relator . . .’ ” (In re Begerow, 136 Cal. 293, 297 [68 P. 773, 56 L.R.A. 528].) A similar view has been expressed in other jurisdictions, including Missouri. (See Ex parte Messina, 233 Mo.App. 1234 [128 S.W.2d 1082]; United States v. Chung Shee, 76 F. 951 [22 C.C.A. 639]; In re Crandall, 59 Kan. 671 [54 P. 686]; 25 Am.Jur., Habeas Corpus, § 157; 2 Freeman on Judgments, § 827, p. 1759 et. seq.) For illustration, in Ex parte Messina, supra, the Missouri court was concerned with a prisoner who was held pursuant to extradition proceedings by the Missouri police on warrant of the governor of that state at the request of the governor of Kansas. The Kansas agent appeared. The prisoner sought habeas corpus and pleaded a release on a writ obtained eight years previous on similar extradition proceedings where it was found that the prisoner was not a fugitive from justice, for he had not been in Kansas at the time of the crime. His plea was upheld, no new facts appearing.
The majority opinion relies upon State v. Hoffmeister, 336 Mo. 682 [80 S.W.2d 195], but as seen above, Ex parte Messina, supra, is a later and controlling decision. I think it is clear, therefore, that the Missouri court did have jurisdiction and did decide the pertinent issue. Its adjudication should be respected. No reason for ignoring it is given.
I conclude, therefore, that a discharge in habeas corpus under the circumstances here presented, if made either in California or Missouri, would be res judicata in another proceeding in the same state.
It is the general policy of this state to give conclusive effect to the judgments of sister states. “The effect of a judicial record of a sister state is the same in this state as in *582the state where it was made, except that it can only be enforced here by an action or special proceeding ...” (Code Civ Proc., § 1913.) (See Biewend v. Biewend, 17 Cal.2d 108 [109 P.2d 701, 132 A.L.R. 1264]; Gilmer v. Spitalny, 84 Cal.App.2d 39 [189 P.2d 744].) And the writ of habeas corpus is the writ of freedom and where there has been a . discharge thereunder, the prisoner should not be further harassed under the same set of circumstances. The State of California actively participated in the Missouri court proceedings and I assume that court applied California law in arriving at its conclusion. There is, therefore, no reason why the Missouri judgment should not be given binding effect.
There are cases which have said that a discharge through habeas corpus in another state will not be given effect in the state where the accused is charged with a crime. (See Ex parte Silverman, 69 Ohio App. 128 [42 N.E.2d 87]; State v. Wall, 187 Minn. 246 [244 N.W. 811, 85 A.L.R. 114]; Letwick v. State, 211 Ark. 1 [198 S.W.2d 830].) In the Silverman and Letwick cases, the question of waiver of further right to punish the prisoner was not involved. The issue in the asylum state habeas corpus proceedings was whether under the conditions then existing the prisoner was lawfully in custody. They did not concern a situation such as we have here where the conditions and issues are identical. Nor were the same issues presented in the Wall case, where the court relied on the premise that the discharge would not be res judicata in the asylum state. As we have seen, it would be res judicata in Missouri, the asylum state here, as well as in California, the demanding state.
Similar comments are applicable to the general rule that a discharge on habeas corpus from custody grounded on extradition proceedings does not bar subsequent arrest, for in those eases the release is bottomed on some defect in the extradition proceedings such as the warrant or otherwise, and naturally when those defects are corrected, the second habeas corpus proceedings involve new issues and different facts. Whatever may be the usual rule, I see no valid reason for not giving conclusive effect to the Missouri judgment here where the issues are identical, the proper law was applied, and this state was adequately represented.
It has been held in the federal courts that habeas corpus was not available to release a prisoner held on an extradition warrant where the grounds claimed were that he would be given unconstitutional treatment if the prisoner were re*583turned to the demanding state. (United States v. McClain, 42 F.Supp. 429; Johnson v. Matthews, 182 F.2d 677.) But the contrary has also been held. (Johnson v. Dye, 175 F.2d 250, reversed for failure to exhaust remedies in state court, Dye v. Johnson, 338 U.S. 864 [70 S.Ct. 146, 94 L.Ed. 530]; see Harper v. Wall, 85 F.Supp. 783; Application of Middle-brooks, 88 F.Supp. 943; Ex parte Marshall, 85 F.Supp. 771.) The court in Johnson v. Matthews, supra, seemed to think it did not have jurisdiction but here the Missouri court took jurisdiction and decided the identical issue now presented, and there is no reason why we should ignore its adjudication in view of the strong policy of this state to give “full faith and credit” to judgments of sister states. The Matthews case does not hold, as has been suggested, that a court in an asylum state could not constitutionally have jurisdiction to decide the issue of whether the demanding state has waived all claim to the exaction of further penal punishment. While it may not be customary to settle such an issue in habeas corpus proceedings in the asylum state following the initiation of extradition proceedings, yet that question was presented here with this state participating and was decided. The policy arguments with respect to extradition might well have been advanced by California in the Missouri proceedings, but were not. Now we have the solemn adjudication of Missouri — a sister state — and the settled policy is to recognize that adjudication. In the interests of interstate harmony, it should not be disregarded.
I would therefore release petitioner from custody forthwith.