This appeal is from a judgment granting a writ of habeas corpus and releasing appellee from custody of the Warden of the Indiana State Prison.
Appellant assigns as error the overruling of his motion for a new trial.
The evidence was by stipulation of the parties and a summary thereof is necessary to a full understanding of the questions presented.
Appellee was sentenced on January 12, 1940, by the Gibson Circuit Court to serve a term of 2 to 14 years in the Indiana State Prison for the crime of forgery.
On June 21, 1946, the Board of Parole for the Indiana State Prison, at its regular monthly meeting, declared appellee, Wells, to be delinquent. On October 7, 1946, appellee was sentenced for a term of one year in the City Workhouse in St. Louis, Missouri, and at the end of this term, on October 7, 1947, he was returned and imprisoned in the Indiana State Prison. He was again released on parole on June 16, 1950.
On or about March 1, 1951, appellee was arrested in Mt. Carmel, Illinois, on a charge of forgery. He waived preliminary hearing and informed the Justice that he was on parole in Indiana. On the next day after the preliminary hearing the Sheriff of Wabash County, Illinois, called the Indiana State Prison and informed "the person on the telephone" that the Wabash County
Also, on March 2, 1951, the Acting Director of the Division of Corrections of Indiana wrote the Sheriff of Wabash County, at Mt. Carmel, Illinois, advising him that the Division had been informed by the District Parole Officer of appellee's arrest in Illinois and requesting a report covering the circumstances of the case, and asking that the Division be kept advised as to the outcome. The letter also stated:
The Department of Public Welfare was subsequently notified that appellee had been delivered to the Southern Illinois Penitentiary on April 6, 1951, and on April 12, 1951, the Acting Director, Division of Corrections of the Department of Public Welfare of Indiana wrote the Warden of the Illinois Penitentiary as follows:
After the issuance of a warrant by the Warden of the Indiana State Prison on March 2, 1951, the Board of Paroles of such prison, at its regular monthly meeting, on March 16, 1951, again declared appellee to be delinquent.
The record further discloses that upon his release from the City Workhouse in Missouri appellee was arrested and returned to the Indiana State Prison on October 7, 1947, at which time the termination date of his unexpired maximum term imposed by the Gibson Circuit Court was extended for a period of one year, three months and sixteen days from and after January 12, 1954, because the running of his sentence was tolled as provided by the Acts of 1897, ch. 143, § 8, p. 219, being § 13-251, Burns' 1942 Replacement.
After appellee's release from the Illinois State Penitentiary he was arrested and returned to the Indiana State Prison on October 22, 1953, at which time the termination date of the unexpired maximum term of his sentence was extended for two years, seven months and six days from and after April 28, 1955, because of his second parole violation, thus extending petitioner's-appelle's term of service in the Indiana State Prison to and including December 4, 1957, as provided by § 13-251, supra.
Two questions are presented for our consideration.
First: Did the Supervisor of Paroles and the Acting Director of the Division of Corrections of the Welfare
A similar question was before this court in Gilchrist v. Overlade (1954), 233 Ind. 569, 122 N.E.2d 93. There the appellant, Gilchrist, while on parole from the Indiana State Prison was arrested and convicted by the Federal District Court for violation of the Dyer Act. Upon conviction the Chief Probation Officer of the District Court wrote the Warden of the State Prison to inquire whether the Warden would accept the return of Gilchrist as a parole violator and permit him to serve his Federal term concurrently with the remainder of the sentence he would be required to serve by reason of the violation of his parole. The parole officer was advised by the Indiana authorities that they had no desire to proceed against Gilchrist as a parole violator so long as the Federal Government had actual custody and jurisdiction of the prisoner.
In the Gilchrist case, at page 575 of 233 Ind., and page 96 of 122 N.E.2d, we said:
The surrender of appellee to the authorities of Missouri and Illinois upon the criminal charges there pending against him did not constitute a waiver of the right to recommit him to the Indiana State Prison to serve out the time imposed by the statute
If the Indiana authorities did not desire to retain their custody of appellee and were willing to suspend it temporarily while he served the sentences which he had received in Missouri and Illinois, it was a right which resided wholly in them, and was not one personal to appellee which he could enforce or complain because it was not exercised. Gilchrist v. Overlade, supra, and cases there cited. See also: State ex rel. Smith v. Dowd (1955), 234 Ind. 152, 124 N.E.2d 208.
Second: Could appellee be held in the Indiana State Prison for a period equal to the unexpired maximum term of his sentence remaining at the time his delinquencies were declared, i.e., until December 4, 1957, and longer than January 12, 1954, at which time his maximum term would have been served except for his delinquencies while on parole?
Acts 1897, ch. 143, § 8, p. 219, being § 13-251, Burns' 1942 Replacement, supra, provides:
In construing the above section, words and phrases must be given their plain ordinary and usual meaning, unless a contrary purpose is clearly shown by the statute itself. R.L. Shirmeyer, Inc. v. Ind. Revenue Bd. (1951), 229 Ind. 586, 591, 99 N.E.2d 847; Porter et al. v. State ex rel. Hays (1935), 208 Ind. 410, 413, 196 N.E. 238. No such purpose is here shown.
Section 13-251, supra, being a part of the parole acts, must be read into appellee's parole and considered as a condition thereof in the same manner as if the provisions of the statute were recited in the certificate of parole.
Appellee was first declared delinquent on June 21, 1946, and was thereafter, because of such delinquency, arrested and imprisoned on October 7, 1947.
He was again paroled and was subsequently declared delinquent a second time on March 16, 1951. For this delinquency he was arrested and returned to the Indiana State Prison on October 22, 1953.
Section 13-251, supra, operates automatically, under certain specified conditions, to toll or suspend the running of a prisoner's sentence. The invoking of the statute rests wholly with the prisoner. He, and he alone, must furnish the conditions or perform
In the case at bar, appellee, by the violation of his parole, started in operation the machinery which tolled the running of his sentence for the period from June 21, 1946 to October 7, 1947, a total of 1 year, 3 months and 16 days, and from March 16, 1951 to October 22, 1953, a total of 2 years, 7 months and 6 days. He cannot now complain of the results of his own acts.
The parole authorized by our statutes
While a parole is an amelioration of punishment, Anderson v. Corall (1923), 263 U.S. 193, 68 L.Ed. 247, 44 S.Ct. 43, it is, in legal effect, still imprisonment. Drinkall v. Spiegel, Sheriff (1896), 68 Conn. 441, 36 Atl. 830, 36 L.R.A. 486. The sentence and service while on parole are subject to the provisions of § 13-251, supra, that whenever a parolee has been lawfully declared delinquent he shall, whenever arrested pursuant to a warrant issued for his retaking, be imprisoned in the institution from which he was paroled for a period equal to the unexpired maximum term of his sentence at the time such delinquency is declared, unless he is sooner released by some lawful authority.
If appellee had not violated his parole and had not
In each instance, from the date on which he was declared delinquent until appellee was returned to the Indiana State Prison, the running of his sentence was tolled, Nave v. Bell (1950), 6 Cir., 180 F.2d 198; Zerbst v. Kidwell (1938), 304 U.S. 359, 82 L.Ed. 1399, 58 S.Ct. 872, 116 A.L.R. 808; See also: Annotation. 116 A.L.R. 811, and was, in legal effect, as much suspended as though he had escaped. Anderson v. Corall (1923), 263 U.S. 193, 68 L.Ed. 247, 44 S.Ct. 43, supra; Zerbst v. Kidwell (1938), 304 U.S. 359, 82 L. Ed. 1399, 58 S.Ct. 872, 116 A.L.R. 808, supra; Platek v. Aderhold (1934), 5 Cir., 73 F.2d 173, 175; Drinkall v. Spiegel, Sheriff (1896), 68 Conn. 441, 36 Atl. 830, 36 L.R.A. 486, supra.
Appellee herein was sentenced to serve a maximum of 14 years in the Indiana State Prison. Since service of his sentence was interrupted on two occasions by parole violations the full term has not been completed. Zerbst v. Kidwell (1938), 304 U.S. 359, 82 L.Ed. 1399, 58 S.Ct. 872, 116 A.L.R. 808, 810, supra.
Since appellee's own misconduct resulting in his being twice declared delinquent has prevented the completion
Appellee's delinquencies not only tolled and suspended the running of his sentence but rendered him liable to arrest and service of the full maximum sentence even though the time may have passed at which, but for his delinquencies while on parole, it would have been completed. Platek v. Aderhold (1934), 5 Cir., 73 F.2d 173, 175, supra.
The time which appellee served in the City Workhouse in Missouri was for the commission of an offense against that State. Likewise, the time which he served in the State Penitentiary in Illinois was for the commission of an offense in that State. The time which he has served and is serving after his two arrests upon warrants issued by the Warden of the State Prison and after his being declared delinquent, is for violation of the terms of his parole. He cannot pay this debt to the State of Indiana by serving time in prisons in Missouri or Illinois for crimes committed in those states.
From the date on which he was first declared delinquent, i.e., June 21, 1946, appellee owed the State of Indiana service for the remainder of his maximum sentence amounting to 7 years, 6 months and 21 days. If appellee had not violated his parole his term would have ended on January 12, 1954. However, as the result of his crime in the State of Missouri he was not returned to the actual custody of the Warden of the Indiana State Prison until October 7, 1947, at which time his sentence again began to run and he resumed service of the maximum term of his sentence which could be satisfied only by actual service unless remitted by a duly constituted authority. Ex
Thus, by operation of statute,
Applying the same reasoning to his second delinquency following his arrest in the State of Illinois, appellee's term of service in the Indiana State Prison was, by his own act and the operation of the statute, extended to December 4, 1957.
Appellee could not satisfy and discharge his debt to the State of Indiana by serving his sentence imposed by another jurisdiction for a crime committed there while on parole from the Indiana State Prison.
The unserved portion of his maximum sentence remaining at the time he was declared delinquent could be legally satisfied in only three ways, (1) by actual service within the confines of the State Prison; (2) by pardon or commutation by the Governor; or (3) by appropriate action of the Board of Parole for Indiana State Prison.
For the reasons above stated, the judgment releasing appellee is contrary to law.
The judgment is reversed and the cause remanded with instructions to the trial court to deny the writ.
Arterburn and Landis, JJ., concur.
Achor, J., concurs with opinion.
Emmert, C.J., dissents with opinion.
I concur in the result of the majority opinion, but it occurs to me that one issue is raised
It is contended that the failure of the State of Indiana to retake the parolee when made available by the states of Missouri and Illinois constituted a waiver of his delinquency during the period of his imprisonment by those states.
In support of this contention attention is called to the fact that, if a parolee can be apprehended within the State of Indiana, it is the manifest intention of the parole statute (Acts 1897, ch. 143, §§ 5, 6, 7 and 8, page 219, being §§ 13-248, 13-249, 13-250, 13-251, Burns' 1942 Repl.) that, on violation of his parole, the parolee must be returned to the prison if it is possible to do so. Therefore, it necessarily follows that a delinquency can be declared by the parole board only in event the return of the prisoner is not possible. Upon this subject, § 13-250, supra, expressly provides: "Any officer of said prison, or any other officer authorized to serve criminal process within this state to whom such warrant shall be delivered is authorized and required to execute said warrant by taking said prisoner and returning him to said prison." (Our italics.)
However, the intention of the legislature with regard to the taking of a parole violator charged with a criminal offense in another state before declaring a delinquency, presents an entirely different situation. If a parolee is charged with a second offense committed while on parole in this state, it is contemplated by statute that he be presently tried for the second offense and if found guilty that he serve time for such second offense in addition to and after the first sentence has been served (Acts 1947, ch. 61, § 1, p. 205, being § 9-2250, Burns' 1942 Repl. (1953 Supp.)). The statute seems to demonstrate a clear legislative intention that a parolee
Bearing in mind the intention of the legislature as above expressed, the problem which confronts the parole board is essentially as follows: The parole board is vested with the authority and is charged with the responsibility of considering the record of each prisoner as related to his eligibility for parole. If a parolee commits a crime in this state, the parole board has no responsibility with regard to a conviction for that offense. This is true because the parolee is in the continuing jurisdiction of the state and can be prosecuted by the proper authorities as the processes of our courts permit. However, such procedure is not possible if the crime is committed in another state because there is no such continuing custody as between the officers of Indiana and those of independently sovereign states. If a parolee is to be charged with a second offense, committed in another state, his constitutional guarantees require that he be tried "speedily and without delay." This means that he must be tried in that state before being returned to Indiana. This is necessary to both the state and the accused in order that witnesses can be obtained and they can testify while their recollection of the case is clear. If he is convicted of that offense, it follows that he must first serve his sentence in that state before being returned to the State of Indiana to complete his sentence for which he was on parole.
The above procedure differs from that provided in § 9-2250, supra, only that the parolee serves time for the second offense in the other state before completing
If a parolee commits a crime in another state and he is offered by that state to the parole board of Indiana as a parole violator, the circumstances of the case make it the duty and responsibility of the board to determine whether or not the record of the parolee justifies his return without permitting him to also pay the penalty for his second offense committed in that state If, under the record, the parole board determines that the parolee should be subjected to trial for the crime committed by him in another state, we cannot say that such action constitutes a waiver of its right to declare a delinquency during the period of parolee's imprisonment for the second crime. Rather, in taking this action, the board has exercised its responsibility as authorized by the statute (§ 13-251). The situation with which the board was confronted was brought about by the parolee's own wrongdoing and I find no basis for challenging the board's exercise of discretion in the matter.
The maximum sentence of the judgment entered by the Gibson Circuit Court on January 12, 1940, expired by its specific terms at the end of fourteen (14) years, to-wit: January 12, 1954. Appellee never escaped, and unless this court can find some statute which was in force at the time the judgment was pronounced that extended the term by operation of law, appellee's term could not be changed or modified by
Since my dissent in Gilchrist v. Overlade (1954), 233 Ind. 569, 122 N.E.2d 93, 99, in which Judge Gilkison concurred, additional research has fortified our position as to the proper construction of the statutes involved. The opinions of other jurisdictions relied on to extend the sentence here are based on different statutes which permit an extension by operation of law of the maximum term of the judgment.
Like all penal statutes, the parole statutes are to be construed in favor of the citizen and against a restriction of liberty. Dowd, Warden v. Johnston (1943), 221 Ind. 398, 47 N.E.2d 976. Chapter 143 of the 1897 Acts provides the causes and procedure for parole and revocation. Section 5 of the Act, (§ 13-248, Burns' 1942 Replacement) provides the parole shall be "until the expiration of the maximum term specified in his sentence...." Section 6 (§ 13-249, Burns' 1942 Replacement) authorizes the issuance of the warrant "at any time prior to the maximum period for which such prisoner might have been confined within the prison walls upon his sentence...." Section 8 of the Act (§ 13-251, Burns' 1942 Replacement) states that the board may "declare said prisoner to be delinquent, and he shall, whenever arrested by virtue of such warrant, be thereafter imprisoned in said prison for a period equal to the unexpired maximum term of sentence of such prisoner, at the time such delinquency is declared...." There is not a word in any of these sections
This subsequent act was not noticed in the Gilchrist case, nor in the majority opinion on the appeal at bar.
With this latter act still in full force and effect, how can it be reasoned that a statutory board has authority to change the terms of a judgment. "Over and over again this court has held that public officers in Indiana exercise but delegated powers — `naked powers' they have been called. Even constitutional officers have been held to this rule of delegated powers. Branham v. Lange (1861), 16 Ind. 497; Matlock v. Strange (1856), 8 Ind. 57.... The decisions of this court have always indicated a strict adherence to the rule that public officers exercise only delegated authority." State ex rel. v. Home Brewing Co. (1914), 182 Ind. 75, 91, 92, 105 N.E. 909. The parole board is statutory only, and as was said of the Public Service Commission, it "derives its power and authority solely from the statute, and unless a grant of power and authority can be found in the statute it must be concluded that there is none." Chicago & E.I.R. Co. v. Public Service Comm. (1943), 221 Ind. 592, 594, 49 N.E.2d 341.
The federal cases are based on the federal statutes which are entirely different as to the maximum term.
This court ought to put a stop to the parole authorities of this state playing cat and mouse with these prisoners.
In this case rhetorical paragraph No. 4 of the complaint for the writ alleged:
This was not denied by the return and stands admitted of record by the pleadings.
NOTE. — Reported in 127 N.E.2d 686.
"A prisoner violating the provisions of his parole and for whose return a warrant has been issued by the said director shall, after the issuance of such warrant be treated as an escaped prisoner owing service to the state, and shall be liable, when arrested, to serve out the unexpired portion of his maximum imprisonment, and the time from the date of his declared delinquency to the date of his arrest shall not be counted as any part or portion of the time to be served." Section 791.36, Michigan Compiled Laws, 1948.
"If any prisoner shall violate the conditions of his parole or release as fixed by the prison board, he shall be declared delinquent, and shall thereafter be treated as an escaped prisoner owing service to the state, and shall be liable, when arrested, to serve out the unexpired term of his maximum possible imprisonment, and the time from the date of his declared delinquency to the date of his arrest shall not be counted as any portion or part of time served; ...." Section 62-1528, General Statutes of Kansas (Anno.) 1949.