I concur in the judgment and, generally, in the discussion insofar as it relates to petitioner’s claimed right to judicial review of the administrative act of the warden. (Mandamus is not a proper vehicle for asserting the right here involved. See concurring and dissenting opinion, Phyle v. Duffy (1949), 34 Cal.2d 144,170 [208 P.2d 668].) I do not, however, concur in any possible implication that an insane person may be executed or that the right to the writ of habeas corpus may be suspended or denied absolutely as to persons who are insane or who are under sentence of death, merely because they have been so adjudicated.
*308Penal Code, section 1367, has provided ever since 1872, and still provides, that “A person cannot be tried, adjudged to punishment, or punished for a public offense, while he is insane.” Section 26 of the same code declares that “All persons are capable of committing crimes, except those belonging to the following classes: . . .
“Three. Lunatics and insane persons. ...”
The Constitution of the United States (art. I, § 9, cl. 2) provides that “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it. ’ ’ The Constitution of California (art. I, § 5) declares the same fundamental right.
The Penal Code, section 1473, implementing the Constitution, declares that “Every person unlawfully imprisoned or restrained of his liberty, under any pretense whatever, may prosecute a writ of habeas corpus, to inquire into the cause of such imprisonment or restraint.” Section 1474 provides that the petition for the writ (which may be signed either by the party for whose relief it is intended or by some person in his behalf) shall specify “If the imprisonment is alleged to be illegal ... in what the alleged illegality consists.” The illegality may consist in the fact that a warden of a prison refuses to obey the law: a prisoner is insane, is known to the warden to be insane, and is nevertheless being held by the warden for the purpose of executing a sentence of death while the prisoner remains insane. In such a ease the order granting the writ of habeas corpus would not require the release of the prisoner from all custody (Pen. Code, § 1486) but should release him from the illegal detention; i. e., the detention which, if not limited, will culminate in illegal execution and, if the prisoner belongs in the custody of the superintendent of a hospital for the criminal insane for safekeeping and treatment rather than in the custody of the warden of a state prison for execution, the writ may so order (Pen. Code, §§1487, subd. 5, 1493).
Section 3700 of the Penal Code, providing that “No judge, court, or officer, other than the Governor, can suspend the execution of a judgment of death, except the warden of the State prison to whom he is delivered for execution, as provided in the six succeeding sections, unless an appeal is taken,” by its own provision has no application to the powers of the court or a judge when an appeal has been taken and manifestly it cannot, by express prohibition of the Constitutions of both *309the United States and the State of California, operate to suspend the constitutionally granted rights of the citizens to sue out, and the courts and judges to grant, writs of habeas corpus, with such stays of execution as may be appropriate. Manifestly, the power to issue a writ of habeas corpus in a death penalty case includes the power to stay execution. The very issuance of the writ must as a necessary incident effect a stay until after the writ has been discharged or an appropriate order made, else the writ could not be obeyed. Sections 3701 et seq. must, therefore, be construed, as their own language comprehends, as definitive of the duties of a warden of a prison when "there is good reason to believe that a defendant, under judgment of death, has become insane,” or “that a female . . . [under like commitment] is pregnant.” (Certain duties are also imposed upon the district attorney by the mentioned sections in the contemplated circumstances.) But such sections do not purport to cover the situation where the warden fails to obey the law.
Certainly no provision in chapter 2 (of tit. 3, pt. 3) of the Penal Code (the chapter containing sections 3700 to 3706, inclusive) purports to declare that the warden of a prison is above the law and his acts beyond cognizance of the courts. Neither does any provision of law purport to authorize the execution of an insane person or a pregnant woman, or to suspend, in contravention of the Constitutions of the United States and of the State of California, the issuance of writs of habeas corpus or the inherent power of the court, or a justice thereof, in such cases to stay execution.
The constitutional provisions safeguarding the writ of habeas corpus ad subjiciendum are wise. The right to that writ was hard won by our ancestors. It gained formal recognition as the vehicle for inquiring into the lawfulness of the restraint of a person detained in another’s custody upon passage of the Petition of Right (16 Chas. I, ch. 10, § 8) and the subsequent passage in 1679 of the Habeas Corpus Act (31 Chas. II, ch. 2). It should not be stricken down in whole or whittled away in part by any decision of this court. To hold it inapplicable in the ease of prisoners under sentence of death who are insane, or who are pregnant, would mean that, conceivably, a warden, knowing full well that a prisoner was a lunatic, completely bereft of reason, unknowing the act for which he was sentenced or even that he was to be punished, could proceed with the execution. Likewise, such a warden, knowing that a female under death sentence was *310about to be delivered of child, could proceed with the execution of the convicted prisoner and, as an incident thereof, of the unborn infant. And, the writ of habeas corpus being suspended in such eases, no court or judge could stay the execution. (See majority holding in In re Phyle (1947), 30 Cal.2d 838, 850 [186 P.2d 134]; see also dissenting opinion, id., 851 et seq.; see concurring and dissenting opinion, Phyle v. Duffy (1949), supra, 34 Cal.2d 144, 163 et seq.; Phyle v. Duffy (1948), 334 U.S. 431 [68 S.Ct. 1131, 92 L.Ed. 1494], concurring opinion of Mr. Justice Frankfurter, pp. 444-445 of 334 U.S.)
The concept of using mandamus (a superior court civil proceeding carrying with it a right to appeal and ensuing delay) as a substitute for habeas corpus was an unfortunate expedient which had better never have been innovated. (See In re Phyle (1947), supra; Phyle v. Duffy (1948), supra, 334 U.S. 431; Phyle v. Duffy (1949), supra, 34 Cal.2d 144, 147, 167, 171.) I am glad to concur in holding that such remedy is inapplicable.
There should be few, if any, unjustified delays attendant upon use of the conventional vehicle, habeas corpus, upon proper showings. This court will not issue such writ upon tardy application or the mere averment of conclusions, or of the ultimate fact, or of general statements of facts. The principles enunciated in In re Swain (1949), 34 Cal.2d 300, 304 [209 P.2d 793], should be strictly applied in all related situations. (See also People v. Shorts (1948), 32 Cal.2d 502, 506 [197 P.2d 330].)
For the reasons, and with the limitations, above stated, I concur in the orders dismissing the appeal, terminating the stay of execution and issuing the remittitur forthwith.