195 Ky. 103 | Ky. Ct. App. | 1922
Granting writ of prohibition.
Hyram Cowan was, on the 15th day of September, 1914, convicted of a violation of section 1166, Kentucky Statutes, and sentenced by the judgment to imprisonment in the Reformatory at Frankfort, Ky., for an indeterminate period of from one to five years, as was then provided by law. He was delivered to the custody of the Reformatory to undergo the sentence on October 8, 1914. On the 22nd day of October, 1915, he was granted a parole .from the institution, by the then Board of Prison Commis- ■ sioners, and since that time has been at large under the terms and conditions of the parole, until the first day of May, 1922, when he was arrested, by virtue of a warrant issued by the Board of Charities and Corrections, which required that he be rearrested, returned and reincarcerated in the prison to serve the remainder of the term for which he was sentenced, and which he did not actually serve in prison before the parole. The reason for the revocation of the parole, and the order for his rearrest, was that he had violated the terms and conditions of the 'parole. The parole when granted was upon and subject to the conditions, provisions and limitations then provided by law, which authorized the granting of paroles to prisoners confined for such felonies, as that for which Cowan was convicted, and especially upon the conditions, that, if the prisoner should at any time violate the terms of the parole, or commit any act which under the laws is 'an offense, or if in the opinion of the Boa;rd the welfare of the prisoner or of society demanded, the Board should cause him to be rearrested and recommitted to the prison from which he was paroled or to a similar institution, under the control of the Board; and the further condition that he should at all times be under the control and supervision of and subject to the orders, rules and directions of the Board, and in the legal custody of the chief executive officer of the institution from which he was paroled. After the arrest of Cowan on the first day of May, 1922, under the warrant issued for him, with the ■approval of the Governor, by the Board of Charities and Corrections, and while he was being held upon such warrant, he made application to the judge of the.county court to grant him a writ of habeas corpus, requiring his productiombefore such judge, claiming that he was being illegally restrained of his liberties, and it appearing that
The defendant interposed a general demurrer to the petition, and the cause is submitted for final judgment upon the demurrer.
It will be observed that among the facts, admitted by the demurrer, are that Cowan was convicted of a felony and sentenced to imprisonment for an indeterminate term of from one to five years; but-he actually served but a few days over one year of the term, and was then paroled ; that there yet remains of the term to which he was sentenced a little less than four years, which he has not actually served in prison. The conviction was under section 1136, Kentucky Statutes, 1915, which was an act of 3 914. The parole was granted under an act of 1914 which is section 3828, subsections 1 to 12, inclusive, of Kentucky Statutes, 1915. Under these statutes it was within the discretion of the Board of Penitentiary Commis-sioners- to -detain the convict in prison until the maximum time of his imprisonment should be reached, or it might parole him after he had served the minimum period of the sentence. Wilson v. Commonwealth, 141 Ky. 341; Board of Prison Commissioners v. Smith, 155 Ky. 425. The Board was without power, -of course, to imprison him longer than the maximum period of his imprisonment, regardless of his conduct or previous history. Under subsections 2, 3, 4 and 8 -of section 3828, Kentucky Statutes, 1915, a parole was granted only upon the application of the prisoner after he had served the minimum term of his sentence. After being paroled the prisoner was not required to wear anything, which indicated that he was under conviction for a crime, nor was he required to reside in the state or elsewhere, unless the place of his residence was a condition of the parole; he was free to come and go as he might choose, or engage in any remunerative, lawful 'occupation; he was given assistance by the board to find employment, if necessary; but he was required to make such written reports as might be required of him, by the rules of the board, to the chief executive officer of the prison from which he was paroled. The board, also, had in its employment two agents, whose duties it were to look after the paroled convicts and to as
It is established beyond any question that a writ of habeas corpus can be made use of to release from or to interfere with the custody of a prisoner, only, when he is illegally held in custody. If the imprisonment is lawful, the prisoner cannot be released from custody by means of such a writ. Section 399, Criminal Code; Board of Prison Commissioners v. Crumbaugh, 161 Ky. 540. Hepce, if the Board of Charities and Corrections, which is the successor to all the rights and powers of the Board of Penitentiary Commissioners, had authority to issue the writ by virtue of which Cowan was arrested and detained, the county judge cannot, upon the hearing of a writ of habeas corpus, go 'behind the writ of the board, nor interfere with the custody of the prisoner held under the writ. Section 3828, Ky. Statutes, 1915, subsections 1 and 2, and which are the same as section 3828-1 and 2 of Kentucky Statutes, expressly confers upon the Board of Charities and Corrections, as successors to the Board of Penitentiary Commissioners, the authority to issue a.writ for -the arrest of a paroled convict, who has violated his parole, and to reimprison him in satisfaction of the judgment of 'Conviction and section 3828, subsections 6 and 9, Kentucky Statutes, makes it the duty of any peace officer, into whose hands it may come, to execute the writ and denounces a penalty upon him for his failure to do
The general rule with regard to punishment by imprisonment is thus stated in 8 R. C. L. 259 to be “where the penalty is imprisonment the sentence of the law is to be satisfied only by the actual .suffering of the imprisonment imposed, unless remitted by death or some legal au
Furthermore, if permitting a going at large upon a parole is executing a sentence of a court imposing punishment by confinement at hard labor in the Reformatory, such would necessarily be in contravention of section 77 of the Constitution, which’empowers the Governor “to remit fines and forfeitures, commute -sentences, grant reprieve-s and pardons,” and contrary t-o section 3828-10, Kentucky Statutes, which provides that nothing in the -act authorizing paroles shall affect the prerogatives of the Governor, and it has -been held that the power to grant a pardon, commute a sentence, or to remit a fine or forfeiture is exclusively -the prerogative of the Governor. To nold that being under parole executes a sentence of imprisonment would amount to a holding that the Board of Prison Commissioners has power to commute a sentence, since it would change the punishment adjudged by the court into a less severe one, and the board has no power to grant a pardon or -commutation. A commutation discharges a convict from some degree of his pepalty and to that extent is a pardon, though partial. In George, et al. Commissioners v. Lillard, 106 Ky. 820, it was distinctly held that upon the rearre-st and imprisonment of a paroled convict, he could receive no credit upon the period of his adjudged imprisonment, by the period he was under parole, and the same view was expressed in Board of Prison Commissioners v. DeMoss, 157 Ky. 289. In the former case, it was said with reference to the paroled convict, “He is not exempt from the entire punishment which the law inflicts.” In the latter case, certain language is made us-e of which it is insisted upholds the con
Section 3828-1, Kentucky Statutes, which is the same as that in force when the parole was granted, among other provisions, provides as follows :
“And said board shall have the further power and authority, with the approval of the Governor, whenever a paroled prisoner shall violate the terms of his parole, commit any offense against the laws, or when in the opinion of said board the welfare of said paroled prisoner or of society demands, to cause such paroled prisoner to*110 be rearrested and retaken and reconfined and kept in the institution from which he was paroled, or in some other institution under the control of said bóard, to which said board might have transferred said prisoner.” Section 3828-3, supra, provides, among other things, that “and if he (paroled convict) shall fail to make such report or any other report recjuired of him 'by the rules .of said board, or if his conduct is reported as not good, the said failure to report or to properly conduct himself shall be deemed a violation of the conditions of his parole, and shall authorize his reimprisonment, provided the Governor approves the same. ’ ’
The provisions of these sections do not limit the authority of the board to cause the arrest and imprisonment of a convict for a violation of his parole to any time, short of the period, when he shall have actually served his sentence to the extent of the maximum term'adjudged by the court. In the endeavor to make of him a useful and law-abiding citizen, he has, by grace, been permitted to go free of the prison, upon Hie condition that he will conform to certain requirements prescribed, but, when he violates the terms and conditions of the parole granted him, the parole becomes void, and he remains a convict with an unexecuted sentence, except for the time, he was confined and he is in no better condition than a convict who has escaped from the prison before the expiration of his sentence, or who for some reason has a sentence imposed upon him, and upon which he has not yet been committed to prison, and the statute provides that it shall be the duty of the Board of Charities 'and Corrections, when a paroled convict has thus violated his parole and the parole has become void, to require him to execute the remaining portion of the judgment against him. Under the law the convict .sought the parole, and it was granted to him only upon his request, and upon the faith of his agreement to comply with its conditions, and for that reason he cannot be heard to complain of restrictions, if any, which are imposed upon his freedom of action by the terms of the parole, while he was going at large under it. It can scarcely be insisted, as a matter of fact, that a convict who is out of prison, free to live at any place, unless the place of his residence is a condition of the parole, free to select apd engage in any lawful remunerative employment and to receive the fruits of such employment ■and to dispose of same according to his own choice or inclination, but only under the requirements to report, if
This court will grant a writ of prohibition against an inferior jurisdiction when it is proceeding out of its jurisdiction, or proceeding irregularly within it, and there is no adequate remedy by appeal, or there is no remedy at all. I. C. R. R. Co. v. Rice, 154 Ky. 198; Rush v. Denhardt, 138 Ky. 238; Board of Prison Commissioners v. Crumbaugh, supra. A county judge has jurisdiction to issue a v^rit of habeas corpus under the circumstances, provided in section 399, Criminal Code, and may hear a response to such a writ as provided by section 416, Criminal Code, and we assume that in the instant case the facts are such as to give a county judge jurisdiction to issue and hear the writ of habeas corpus. The petition, however, states and the demurrer admits, that the petition for the writ of habeas corpus filed before the county judge shows that the petitioner is a paroled convict, who has been rearrested and detained, under a writ issued by the Board of Charities and Corrections for having violated his parole. It appearing from the application for the writ that the detention complained of is lawful and not illegal it would be erroneous fop a county judge to issue a writ of habeas corpus, or under it to discharge the convict. In Bethuram v. Black, 11 Bush 628, it was held that the writ of habeas corpus was a discretionary writ, and should be issued only when probable cause for it is shown, and if upon -the face of the petition therefor, it appears, that there was no sufficient grounds for release of a person in custody, the writ should be denied, There is no appeal from a judgment in a habeas corpiis proceeding, and hence there is no remedy for ‘erroneous proceedings under such a writ, and it is not difficult to understand how, if such a proceeding is permitted, the authority of the Board of Charities and Corrections would be much affected, if not destroyed. The remedy, where the Board of Charities and Corrections has exceeded or. abused its authority, is to obtain a writ of mandamus or prohibition from the proper circuit court, from the judgment of which an appeal lies.
The temporary writ of prohibition is therefore made permanent, and the defendant is enjoined from issuing the writ or in any way interfering with the custody of the prisoner, through proceedings under such writ.