Whitten v. Bennett

• Decision Date: 08 March 1944
• Docket Number: No. 8530-8533,No. 8537.,8530-8533,8537.
• Citation: 141 F.2d 295
• Parties: WHITTEN v. BENNETT, Warden. PEOPLE ex rel. FRANKOWSKI v. SAME. PEOPLE ex rel. DARLING v. SAME. PEOPLE ex rel. REWITZER v. SAME. PEOPLE ex rel. TURNER v. SAME.
• Court: U.S. Court of Appeals — Seventh Circuit

141 F.2d 295 (1944)

WHITTEN v. BENNETT, Warden. PEOPLE ex rel. FRANKOWSKI v. SAME. PEOPLE ex rel. DARLING v. SAME. PEOPLE ex rel. REWITZER v. SAME. PEOPLE ex rel. TURNER v. SAME.

Nos. 8530-8533, No. 8537.

Circuit Court of Appeals, Seventh Circuit.

March 8, 1944.

Kenneth N. Whitten, Walter Frankowski, Robert Darling, Alfred Michael Rewitzer, and Paul Turner, of Pontiac, Ill., in pro. per., for appellants.

George F. Barrett, Atty. Gen., for appellee.

Before EVANS, MAJOR, and MINTON, Circuit Judges.

EVANS, Circuit Judge.

These five appeals, in forma pauperis, are from denials by District Judge Adair of their respective petitions for writs of habeas corpus. These five causes were tried below together with nine others. They were distinct and several petitions, but were consolidated for argument by the trial court, and argued together. Such consolidation of hearings is one of the errors assigned on appeal.

This court has ordered that the appeals be permitted to be prosecuted in forma pauperis, but upon a careful reading of all the transcripts has deemed the merits not worthy of the appointment of counsel, the submission of written briefs, and oral arguments for their presentation. We are therefore disposing of the appeals upon our own review of the facts disclosed by the records and research of the pertinent law. The trial court record includes a stenographic report of the entire trial proceedings. A separate recital of the facts in each individual case is made, and of the respective issues raised on the individual appeals.

All the cases involve the point of unconstitutional imprisonment under the Federal Constitution, in cases of reincarceration for parole violations of persons serving state court sentences.

In re Kenneth Whitten: On April 16, 1929, when petitioner was only seventeen years of age, he pled guilty to a charge of receiving stolen property and was sentenced to the Illinois State Reformatory, for a term of one to ten years. (He contends that he should have been sent to jail because he had not committed one of the statutory crimes punishable by imprisonment in the reformatory, Par. 759, Ch. 38, Ill.Rev.Stats. 1933.) He states he asked for counsel at the trial, but didn't get it, although a resumé of the trial proceedings states that he persisted in a plea of guilty although advised of his legal rights. On May 3, 1930, he was released on parole. Thereafter he was sentenced in Wisconsin to a term of one to five years, for robbery. On Feb. 16, 1937, a warrant was filed for his arrest by the Illinois authorities, with the Wisconsin authorities, on the ground that petitioner was a parole violator. On May 12, 1940, Whitten asked the withdrawal of this warrant, issued Jan. 14, 1931, which was a duplicate of the warrant of May 12, 1940, which request was denied. On June 19, 1940, he was returned to Illinois as a parole violator and reincarcerated. At a September, 1940 hearing of the Parole Board, it was determined he should serve two more years from June, 1940, and so, with good time, he should have been released Oct. 29, 1941, but then a new Parole Board changed the former decision and decided he had to serve his full maximum original sentence. In October, 1941, his application for parole was denied, and he was held for the maximum sentence, which, with good time, will expire February 16, 1945.

The issues which this petitioner raises are as to the trial below, the change of the name of the Reformatory, thereby making the mittimus illegal, and his reincarceration after the expiration of his original sentence.

In re Walter Frankowski: Mr. Frankowski was sentenced September 18, 1929, when he was 24 years of age, to a term of one year to life, at the Reformatory, on the charge of burglary, on which charge there was a verdict of guilt. He was represented by counsel at the trial. He was paroled on November 18, 1933, and returned September 10, 1934. He was again paroled, July 10, 1935, and on June 20, 1936, was granted permission to leave the state. In 1939, he asked for a discharge, but was told he could not obtain one while out of the state. In November, 1939, he was brought back from California as a parole violator and on Jan. 16, 1940, was declared to be a parole violator. On Nov. 15, 1940, he was paroled to California, and in April, 1941, he was returned from California for failure to make the required reports, and on Sept. 16, 1941, he was found to be defaulted on out of state parole, and his case was continued to November, 1945. In May, 1942, he was sent to the Diagnostic Depot of the Penitentiary. On June 15, 1942, he was declared a parole violator and his case continued to April 23 (the year is stated differently in the record as 1946 or 1947). On August 17, 1943, he was denied habeas corpus by the Criminal Court of Cook County, and on September 17, 1943, the Illinois Supreme Court denied him habeas corpus. The Attorney General's answer states that the petitioner served four terms in jail while out on parole, three of them in California, and one in Washington.

The issues presented by this petitioner are: (1) Illegal imprisonment because of the change of name of the Reformatory; (2) he claims that mere parole out of the state causes the State of Illinois to lose jurisdiction of the parolee, citing People ex rel. Barrett v. Bartley, 383 Ill. 437, 50 N.E. 2d 517, as authority.

In re Robert Darling: Robert Darling, on December 1, 1925, at the age of 17, was sentenced to the Reformatory for a term of from three to twenty years, on a plea of guilty to the charge of robbery. In May 1931, he was paroled to Los Angeles, California, from where he sent reports until July, 1932, when he was sentenced on a charge of robbery, to a term of five years to life. On Jan. 16, 1933, the Illinois authorities declared him to be a parole violator, and he waived extradition and was returned in April, 1941, and in June was reincarcerated. In June of 1943, he sought and obtained a writ of habeas corpus in the state court, which writ effected his transfer from one branch of the penitentiary to another branch.

The issues which he raises are: (1) He is improperly held in the penitentiary after the change of the Reformatory's name; (2) an out of the state parole was a waiver of the Illinois authorities' jurisdiction to declare him a parole violator.

In re Alfred Rewitzer: On December 18, 1930, petitioner pled guilty to a burglary charge, and he started serving his sentence, January 28, 1931, at the Reformatory. On November 13, 1933, he was paroled and disappeared. On September 25, 1934, a warrant was issued for his arrest as a parole violator because he broke into a home and participated in a robbery. On October 3, 1934, he was found guilty of burglary in California and sentenced to a term of one to fifteen years and returned to Illinois at the expiration of the term. On July 7, 1939, he was placed in the Illinois penitentiary, and on September 15, 1939, he was declared a parole violator. On July 20, 1943, he was released on habeas corpus for reincarceration in the correct penitentiary.

The issues which he raises are lack of counsel at the time of trial and the change of the name of place of incarceration.

In re Paul Turner: Mr. Turner alleges that on March 5, 1925, when he was 23 years of age, he was sentenced, on a plea of guilty to a charge of burglary, to the Illinois Reformatory, by an Illinois court. In 1928, he was paroled, and from June, 1931-1932, he was in the State of Kansas and sent in 12 parole reports; he wrote for more and received none and so assumed his parole was terminated and he was discharged. In 1928, he was arrested in Kansas (at which time the Illinois authorities refused to take him back) and was sentenced to a term of one to ten years on a plea of guilty to the charge of forgery. He went to prison in Kansas on May 18, 1928, and on July 2, 1928, the Illinois authorities asked for him, but withdrew their request, June 18, 1931. He was paroled...