I find myself unable to concur in so much of the opinion of Mr. Justice Richards as denies to the petitioner credit upon the state term of imprisonment for the period of time spent by him in the federal penitentiary. The opinion seems to me to have for its foundation a misunderstanding of the relationship between the United States and the state of California with reference to the prisoner. The universal principle of law applicable is as follows: "Where a state court and a court of the United States may each take jurisdiction, the tribunal which first gets it holds it to the exclusion of the other, until its duty is fully performed and the jurisdiction invoked is exhausted; and this rule applies alike in both civil and criminal cases. (Hagan v.Lucas, 10 Pet. 400 [9 L.Ed. 470]; Taylor v. Carryl, 20 How. 584 [15 L.Ed. 1028]; Troutman's Case, 24 N.J.L. (4 Zab.) 634;Ex parte Jenkins Crosson, 2 Am. Law Reg. (O.S.) 144 [Fed. Cas. No. 7259].) It is indeed a principle of universal jurisprudence that where jurisdiction has attached to person or thing, it is — unless there is some provision to the contrary — exclusive in effect until it has wrought its function." (Taylor v. Taintor, 16 Wall. (83 U.S.) 366, 370 [21 L.Ed. 287].)
With this principle in mind, it must be held to be a fact that the United States government had complete control of the person of the defendant and was not forced to surrender said possession until after its own judgment against him had been satisfied. But it must not be overlooked that at the same time it was within the power of the government of the United States to surrender to the state of California for the purpose of its criminal proceedings the person of the defendant. This must be held to have been done when the federal court stayed the proceedings in its own court and ordered that the person of the defendant be taken to the state court for trial. The United States marshal, *Page 371 from the time jurisdiction of the state court attached, could be none other than an agent of the state of California.
In other words, when the state of California acquired jurisdiction to try, convict, and impose judgment upon the defendant, it had the authority to immediately cause the person of the prisoner to be subjected to the mandates of the judgment.
The question in its last analysis is this: Where the state court has jurisdiction of the person of a defendant and such defendant is tried, convicted, and sentenced in such court, will the judgment so pronounced begin operation at once if the defendant does everything in his power to facilitate the expiation of said sentence without delay or dilatory tactics of any kind or character on his part?
It seems too clear for controversy that the judge of the state court acted with full knowledge of the status of the prisoner and with full knowledge that he was present in his court in the custody of the marshal and had the court desired that the operation of said judgment be suspended, it could and should have used appropriate words to that effect, but this was not done. The commitment issued was for forthwith delivery to the prison. In this connection it must be said that section 670 of the Penal Code, to the effect that sentence of a prisoner does not begin to run until the actual delivery of the defendant at the place of imprisonment, has reference only to cases where the prisoner by his voluntary conduct or consent has prevented the immediate expiation of his sentence and said section 670 has no reference whatever to a case where a defendant himself has acted in co-operation with the authorities of the state to hasten the commencement of service of the sentence imposed.
In this case the sheriff never assumed to take possession nor did the court order possession from the deputy marshal nor did the court order the deputy marshal to deliver said prisoner to the place of imprisonment of the state, but, on the contrary, the United States government was permitted to retain or resume jurisdiction of the person of the defendant, all over the protest and against the will of the prisoner himself. Indeed, the prisoner immediately upon his incarceration in the federal penal institution sought by habeas corpus to have himself transferred to the proper place of *Page 372 imprisonment. (Ex parte Sichofsky, 273 Fed. 694). Failing in this, he conducted an appeal from the judgment in the state court and tendered the issue as to whether or not the state had in fact acquired jurisdiction of his person. It was accordingly held by the decision that such jurisdiction had been obtained (People v. Sichofsky, 58 Cal.App. 257 [208 P. 340] [hearing in this court denied]). Thus we say that this court has solemnly declared that the defendant was in the jurisdiction of the state court and, having so declared, the conclusion is inescapable that the superior court had the power to immediately incarcerate the prisoner in the penal institution of the state. Indeed, the judge of said court purported to do this, but by reason of the circumstances above detailed, such incarceration did not take place. Shall this prisoner be charged with dereliction concerning a matter over which he did not have and could not secure any control whatsoever?
"It is familiar practice that wherever the court imposing several sentences desires to have one begin on the expiration of another, that fact is expressly stated in the sentence; and whenever the court inadvertently fails to have the sentence recorded in that form, or from leniency intentionally omits to add such a provision, and the defendant is committed in pursuance of such sentences, he is either voluntarily released by the jailer, or discharged on habeas corpus at the expiration of the longest term named in either of the sentences. No presumption will be indulged in favor of sustaining the sentence as cumulative. Accordingly the rule is that where the defendant is already in execution on a former sentence, and the second sentence does not state that the term is to begin at the expiration of the former, the second will run concurrently with the first, in the absence of a statute providing a different rule; but when the different sentences are imposed by different courts it seems that it is not necessary that the sentence should state that the second term is to begin at the expiration of the first." (8 R.C.L., sec. 242, p. 242.)
It will be noted from the above excerpt that it is suggested that if the sentences are from different courts instead of the same courts it might not be necessary for the judgment to recite the fact that the second sentence is to begin to run at the expiration of the first term of service, but this *Page 373 portion of the text is supported by only one state — the state of Georgia. See Hightower v. Hollis, 121 Ga. 159 [48 S.E. 969]; also Sullivan v. Clark, 156 Ga. 706 [119 S.E. 913]. It is readily demonstrable that these cases are opposed to the great weight of authority upon this subject. Cases directly opposed to such holding follow:
Zerbst v. Lyman, 255 Fed. 609, 610 [5 A.L.R. 377], where the court said: "It is argued that it was manifest that the California court intended that the punishment should begin after the expiration of the term imposed by the New York court. This nowhere appears. It is true that if the original order of imprisonment in the state penitentiary at San Quentin had not been changed, the imprisonment could not have begun until the prisoner had been released from the Atlanta penitentiary. But there is nothing to indicate that the court intended to do anything other than that which was done.
"It could well be assumed that the court intended, if it can be assumed that it had knowledge of the pendency of another sentence, that the ordinary effect should follow. Ordinarily, two or more sentences run concurrently, in the absence of specific provisions in the judgment to the contrary. United States v.Patterson (C.C.), 29 Fed. 775; In re Breton, 93 Me. 39, 74 Am. St. Rep. 335, 44 A. 125]; 1 Bishop, Crim. Procedure, 1327, 1310. This rule seems to apply where the conviction is had in different courts. Ex parte Green, 86 Cal. 427 [25 P. 21]; Exparte Black, 162 N.C. 457 [78 S.E. 273]; Ex parte Gafford,25 Nev. 101, 83 Am. St. Rep. 568, 57 P. 484]. The case cited by appellant of Hightower v. Hollis, 121 Ga. 160 [48 S.E. 969], if not distinguishable by reason of the nature of the punishment, is apparently in conflict with the weight of authority." See note to the same case in 5 A.L.R. 380; also Dickerson v. Perkins, 182 Iowa, 871 [5 A.L.R. 374, 166 N.W. 293], where the case ofHightower v. Hollis, supra, is discussed, and it is said: "The warden therefore acquired no authority under the mittimus which did not appear in the judgment. It is contended in argument by the state that the implication of concurrent terms is applicable only when the two or more sentences are imposed by the same court. In support of this argument the case of Hightower v. Hollis, 121 Ga. 159 [48 S.E. 969], is cited. The case *Page 374 is not wholly in point, and, if it were, it does not meet the provision of our statute." The court refused to follow the Hightower case and held that under the statute of the state of Iowa, which is no different from our own, it makes no difference whether the judgment was by the same court or not.
Indeed, the above decision is in line with our own Ex parteGreen, 86 Cal. 427 [25 P. 21], where the same conclusion is announced. In this connection see, also, the case of Ex parteGafford, 25 Nev. 101 [83 Am. St. Rep. 568, 57 P. 484], where it is said: "Where the defendant is already in execution on a former sentence, and the second sentence does not state that the term is to begin at the expiration of the former, the second will run concurrently with the first, in the absence of a statute providing a different rule. 21 Am. Eng. Enc. Law, 1075, note 4."
To this should also be added 16 C.J. 1372, section 3228, as follows: "When not otherwise directed by statute, or by the sentence of the court, as a general rule the term of imprisonment for which defendant is sentenced begins with the first day of actual incarceration in the prison, unless actual imprisonment is prevented by some cause other than the fault or wrong of defendant. In some jurisdictions, however, it is held that the term of imprisonment shall date from the time sentence is pronounced, unless the convict by his own wrong has prevented it, while in others it begins to operate from the date of entry in the judgment." The above quotation is also authority for the proposition that where the defendant is without fault on his own part, the sentence begins to run during the period following the pronouncement of judgment unless the judgment otherwise directs. Certainly within a reasonable time, which in this case would not exceed a few days, it would be the duty of the court to deliver the defendant, who is consenting thereto, to the place for imprisonment. "In the absence of a statute to the contrary, if it is not stated in either of two or more sentences imposed at the same time that the imprisonment under any one of them shall take effect at the expiration of the others, the periods of time named will run concurrently and the punishments will be executed simultaneously. The fact that the terms of imprisonment *Page 375 are to be successive must be clearly and expressly stated." (16 C.J. 1374, sec. 3237.)
The case relied upon by petitioner of Ex parte Lawson, 98 Tex. Cr. 544 [266 S.W. 1101], is on all-fours with the case before us, the only difference at all being that the statute of Texas makes the term of imprisonment start from the day of pronouncing the judgment, but that provision of the statute does not render the case inapplicable. The fact is conceded in the case at bar that the prisoner was doing everything he could to be properly incarcerated in the proper prison and was responsible on his own account for no delay whatsoever in the premises. Indeed, the state of California by its own statute is in reality one step ahead of the states from which the other cases were taken because of the provisions of section 669 of the Penal Code which specify the only case in which consecutive sentences may be imposed.
The only distinction between the additional line of authorities above relied upon and the case before us is that in the cases above noted the other courts were courts of the same state whereas in the case at bar one was a United States court and the other a state court. But there can be no reason for a distinction or elimination of those authorities upon that ground for in 8 R.C.L., section 243, page 242, it is said: "Jurisdiction to inflict cumulative punishment is dependent, not on the accident that the offender has been convicted twice or oftener before the same tribunal, but on the fact that distinct violations of the law have been committed by one individual whose malefactions merit separate and, therefore, cumulative penalties." (SeeRigor v. State, 101 Md. 465 [4 Ann. Cas. 719, 61 A. 631].) In other words, the basis of distinction is not that one court is different from another court, but that the character of the crimes is such that in some cases penalties should be made cumulative and in other cases they should not be so.
The conclusion may be summed up in a word. If this defendant is not to receive credit for the three years spent by him in the federal penitentiary, then it must be held to be within the discretion of a judge of the superior court of the state of California to impose a sentence upon a defendant and defer the taking effect of such sentence for the period of three, or any other given number of years. The *Page 376 very statement of this proposition shows forth its impossibility. I therefore conclude that so much of the opinion in the case at bar as denies to petitioner credit for the time spent by him in the federal penitentiary under protest is erroneous.