94 Kan. 439 | Kan. | 1915
The opinion of the court was delivered by
The petitioner, Porter Patterson, seeks a writ of habeas corpus to secure his release from the custody of the sheriff of Shawnee county. Under
The petitioner insists that the revocation of the
“The courts named in section 1 of this act, or the judge thereof in vacation, subject to the restrictions hereinafter provided, may, in their discretion, when satisfied that any person against whom a fine has been assessed or a jail sentence imposed by said court, or any person actually confined in jail under judgment of a justice of the peace, city court, or other like inferior court, but not police court, will, if permitted to go at large, not again violate the law, parole such person and permit him to go at large, upon such conditions and under such restrictions as the court or judge granting the parole shall see fit to impose; such court or judge may at any time, without notice to such person, terminate such parole by simply directing execution to issue on the judgment, or, in case the person shall have been actually confined in jail, the parole may be terminated by directing the sheriff or jailer to retake such person under the commitment already in his hands. After the parole has been terminated, as above provided, the court or judge may in his discretion, after the payment of all costs in the case, grant a second parole, but no more than two paroles shall be granted the same person under the same judgment of conviction. If a parole shall be términated, the time such person shall have been at large on parole shall not be deducted from the time he shall be required to serve, but the full amount of the fine shall be collected or the full time in jail be served, the same as if no parole had been granted.” (Gen. Stat. 1909, § 2460.)
The authorities are not uniform as to the effect of paroles and conditional pardons nor as to the methods that may be employed in revoking them. The differences depend largely on whether the officers taking the action are clothed with full power in the matter of paroles and conditional pardons or whether the action has been taken by subordinate officers or boards with limited powers, or as to the extent of the legislative authority conferred upon such officers, and also as to the conditions that were written in the parole and under which it was granted and accepted. There is abundant authority for the view taken by this court — that where there has been a release the court or judge, when satisfied that the conditions under which it has been granted have been violated, may revoke the parole and cause the rearrest of the convict and his return to prison without notice or hearing, and that this does not deprive the convict of his liberty without due process of law nor violate the other guaranty that no warrant shall issue except upon probable cause supported by oath or affirmation. Here the power is exercised by a court or the judge thereof upon an express provision of the statute and in accordance with the conditions of the parole, and hence the case does not fall within some of the cases cited in opposition to the exercise of the power. Authorities supporting the exercise of the
It is fair to infer that the court would have given consideration to any evidence that the petitioner might have chosen to present tending to show that the information upon which the revocation had been made was not correct if application had been made. Instead of applying to the court, which is always ready to ascertain the real facts and ■ correct any errors it has made of fact or law, the petitioner chose to stand on the naked question that the court had no power to make an ex parte order and that the revocation was absolutely void. His action may be accounted for, in part at least, by a stipulation in the record that the petitioner, who had accepted the parole on condition that he would refrain from violating the prohibitory liquor law, had been convicted of violations of that law while he was out .on parole and had been convicted of being a persistent violator of that law. These convictions are strong evidence that the conditions of the parole had been violated.
The petitioner will be remanded.