The opinion
WILBUR, Circuit Judge.
I dissent. The petitioner was in the custody of the sheriff of Los Angeles county at the time of the issuance of the commitment by the United States District Court. Nothing was done to change the custody from the sheriff to that of the United States marshal, other than the request of the marshal for the sheriff to hold the prisoner for him. The sheriff did not agree to do so, -and, if we assume that he had the authority to surrender the prisoner to the federal authorities without any action by the state court under whose process the sheriff held the prisoner, the fact is that he did not do so. Under these circumstances, the fact that the petitioner was actually imprisoned in the county jail in no way entitles him to credit for the time served upon the judgment of the United States District Court while he was held in the county jail under commitment from the state court.
I agree with the majority in the conclusion that if he had actually been imprisoned in the county jail by reason of the judgment and sentence in the United States District Court, the actual issuance of the commitment and service thereof would be immaterial. This rule is not applicable in the ease at bar, for the reason that he was held in the county jail under the process of the state court, not the federal court. Although the federal court had prior jurisdiction, which it was entitled to assert as against the superior court, a mere telephone call from the marshal to the sheriff, without an agreement on the part of the sheriff to hold the prisoner under the federal process, would not change the custody of the prisoner.