64 S.E.2d 400 | S.C. | 1951
Respondent was sentenced on January 21, 1947 in the Court of General Sessions for Richland County to serve four years in the State penitentiary, without suspension of any part and without parole. He became entitled by reason of good behavior to the benefit of section 1578 of the Code
After his release from the penitentiary pursuant to the foregoing and within the period of time which was equal to one-fifth of his sentence aforesaid, respondent was arrested upon a charge of driving an automobile under the influence of intoxicants and forfeited an appearence bond. The State Probation and Parole Board thereupon, on July 17, 1950, issued its warrant whereby it charged respondent with service of the remainder of his four year sentence on account of the foregoing and because of alleged'threats against his wife and intoxication on several occasions.
In the lower court respondent denied jurisdiction of the Board which the latter asserted by reason of section 1038-12 of the Code, enacted in 1942, sec. 13 of 42 Stat. 1456, particularly the following portion:
“Any prisoner who shall have served the term or terms for which he shall hereafter be sentenced, less deductions allowed therefrom for good conduct, shall upon release be treated as if released on parole and shall be subject to all provisions of law relating to the parole of prisoners under §§ 1038-1 thru 1038-16 until the expiration of the maximum term or terms specified in his sentence; provided, that this section shall not operate to prevent delivery of a prisoner to the authorities of any State otherwise entitled to his custody.”
The record before us does not show whether the required notice was given the Attorney General, Solicitor, or other attorney for the State in accord with section 1056 of Code chapter 66, relating to habeas corpus, by which respondent sought his release from custody. However, the order, from which the State has appealed, recites that a representative of the Probation and Parole Board appeared and admitted the facts which have been state'd here
This court appears not to have been heretofore confronted with the problem, but there are precedents in the decisions' of the Federal courts. Our quoted statute appears to have been largely copied from the earlier (June 1932) Federal statute which appeared as section 7Í6b of Title 18 U. S. C. A. (now Section 4164 of the United States Criminal Code). It is as follows: “A prisoner having served the term or terms for which he shall have been sentenced after June 29, 1932, less good time deductions, shall upon release be treated as if released on parole, and shall be subject to all provisions of law relating to the parole of United States prisoners until the expiration of the maximum term or terms-for which he was sentenced. This section shall not prevent delivery of a prisoner to the authorities of any State otherwise entitled to his custody.”
The result here indicated was reached in Fox v. Sanford, Warden, 5 Cir., 123 F. (2d) 334, 335, from which we quote: “When he (the petitioner) accepted release from the penitentiary he did so- subject to the terms of the statute which provide for the conditional release of prisoners, and for the retaking of those who- violate the terms and conditions. of their releases. 18 U. S. C. A. ,§§ 710, 716, 716a, 715b, 717, 719; 723a to 723c.”
Construing our statutes together, we think it clear that upon release from the penitentiary for good behavior, before the expiration of his sentence, respondent became subject to the jurisdiction of the Parole Board, and the lower court erred in reaching a contrary conclusion.
The order under appeal is reversed.