Uram v. Roach

• Citation: 37 P.2d 793,47 Wyo. 335
• Decision Date: 23 November 1934
• Docket Number: 1898
• Parties: URAM v. ROACH, WARDEN
• Court: Wyoming Supreme Court

37 P.2d 793

47 Wyo. 335

URAM v. ROACH, WARDEN

No. 1898

Supreme Court of Wyoming

November 23, 1934

Original proceeding in habeas corpus by Mike Uram against A S. Roach, as Warden of the State Penitentiary. Prisoner remanded to custody of warden.

Prisoner remanded to custody of warden.

For the plaintiff there was a brief by W. B. Cobb, of Casper, and oral argument by Mr. Cobb.

Section 80-101, R. S. 1931, providing that the board of charities and reform should be the board of pardons and paroles and defining its duties, did not invest said board with judicial functions to retry an offender or increase his sentence. Petitioner was not charged or tried as a previous offender nor did he plead guilty as such. Bandy v. Hehn, 10 Wyo. 174; also annotations in 58 A. L. R. 20 and 76 A. L. R. 468 where the cases are reviewed including Bandy v. Hehn, supra, and in re: Medley, 134 U.S. 160, 33 L.Ed. 835, also see Anderson v. Denver, 265 F. 3; 6 A. & E. Ann. Cas. 452. In West Virginia there is a statute providing for trial of convicts for previous offenses. State v. Graham, 40 L. R. A. (N. S.) 924. The general rule is that former conviction must be alleged in the indictment. 48 A. L. R. (N. S.) 204; in re Dumford, (Kan.) 53 P. 92; in re Murphy, (Kan.) 63 P. 428. The case of Rich v. Chamberlin, (Mich.) 62 N.W. 584, cited by the attorney general does not seem to be in point, for the reason that there the governor ordered a transfer of a convict from the state prison to the house of correction as an act of clemency. See also People v. Cook, (Mich.) 110 N.W. 514; also People v. Cummings, (Mich.) 14 A. L. R. 285; Ex Parte Prout, (Idaho) 5 L. R. A. (N. S.) 1064. The case of People v. Warden, 183 N.Y.S. 882, is affected by a statute. The power to make a transfer of a prisoner is judicial and not executive. People v. Mallary, (Ill.) 63 N.E. 508. Section 108-912, R. S., prescribes the grounds for transfer from the Worland institution to the penitentiary by the board, all of which required a finding of facts, which is a judicial act. Petitioner is entitled to his absolute discharge. Bandy v. Hehn, supra.

For the defendant there was a brief by Ray E. Lee, Attorney General; Oscar O. Natwick, Deputy Attorney General, and Wm. C. Snow, Assistant Attorney General, and an oral argument by Ray E. Lee.

The petition does not attack the validity of the original judgment and sentence to the Wyoming Industrial Institute for a period of not to exceed fourteen years. The board of charities and reform has power to transfer a prisoner from the industrial institute to the state penitentiary, or if insane, to the state hospital for the insane, if more than twenty-five years of age, or known to have been previously convicted of crime or apparently incorrigible. Section 108-912, R. S. 1931. Petitioner was sentenced to the industrial institute on September 20, 1917; served his term and was thereafter convicted and sentenced to the penitentiary for another offense, which sentence he served under his true name, Mike Uram. On November 13, 1928, under the name of John Spaulding, the plaintiff was given the sentence under which he is now being held. He was taken to the penitentiary to be held until the supervisor of the industrial institute could come for him, but when he was received at the penitentiary, to be temporarily held, he was recognized as Mike Uram and the board of charities and reform upon receipt of such information, ordered his tranfer from the industrial institute to the Wyoming State Penitentiary, and his enrollment as an inmate of that institution. The petition does not question the validity of the law giving the board of charities and reform the authority which it exercised in this case, nor the authority of the board to exercise such authority. In this case, petitioner was convicted under another name, upon a plea of guilty, giving his age as eighteen years, thus deceiving the court as to his name, his age and the fact that he had been previously convicted of a felony. He did not have a right to be sentenced to the industrial institute in any event. Hukoveh v. Alston, 25 Wyo. 122. In this case the plaintiff does not show any reason why he is entitled to a discharge. He does not show that he has been illegally sentenced for the commission of any offense, or that the sentence imposed upon him is void. He does not show that he would prefer to be confined in the industrial institute. The case of Wolfe v. State, 38 Wyo. 135, seems to apply. We direct the attention of the court to the following authorities which we believe clearly establish the rule to be that the place of punishment is not a part of the sentence and to change the place of punishment is not the exercise of a judicial function, and to make an order to that effect without notice of the hearing does not deprive the person involved of any constitutional right. Rich v. Chamberlain, 104 Mich. 436, 62 N.W. 584; State v. Peters, 43 Ohio State 629; Sheehan v. Superintendent of Concord Reformatory, 150 N.E. 231; Pellissier v. Reed, 134 P. 813; Stagway v. Riper, 86 A. 440; Ex parte Canary, 200 P. 307; People ex rel. Cunningham v. Warden of County Penitentiary, 183 N.Y.S. 882; in re Murphy, 63 P. 428; People v. Cook, 110 N.W. 514; Conlon's Case, 148 Mass. 168. It is submitted that, upon the record in this case, the petition should be dismissed and the writ denied.

KIMBALL, Chief Justice. BLUME and RINER, JJ., concur.

OPINION

KIMBALL, Chief Justice.

The plaintiff, Mike Uram, alleges that he is unlawfully confined in the state penitentiary and applies for a writ of habeas corpus. A similar previous application to the judge of the second district court has been denied.

The warden as defendant has filed his answer to which plaintiff demurs, but the parties evidently desire a decision on the facts that are shown by a written stipulation.

In November, 1928, the plaintiff, then about 20 years of age, was arrested for burglary in Lincoln County. He gave the name of John Spaulding and on November 13, on an information charging him by that name, pleaded guilty to the crime for which he was arrested. In answer to questions by the judge, he stated, among other things, that he was 18 years of age, had been in Wyoming two or three months, and had never before been convicted of a felony. Thereupon he was sentenced to the Wyoming Industrial Institute at Worland, therein to be "confined under the provisions of law, and the rules and regulations governing the same, to be treated, cared for, kept and confined in such manner and for such length of time as may be best to the officers or board having by law control of such matters but not in any event to exceed the maximum term of fourteen years."

On November 15, 1928, the plaintiff in custody of the officers on the way to Worland was lodged for safekeeping over night in the penitentiary at Rawlins, and was there recognized as Mike Uram a previous inmate. The warden then took charge of plaintiff and has since held him in confinement in the penitentiary. It is admitted that plaintiff's true name is Mike Uram, who twice before had been convicted of burglary and had served sentences therefor--the first in the industrial institute, and the second, which expired in January, 1927, in the penitentiary. The facts concerning the previous convictions of plaintiff were ascertained by the board of charities and reform and by reason thereof the board ordered plaintiff to be confined in the penitentiary. The written evidence of the board's actions consists of the following:

First: Letter of November 23, 1928, from the secretary of the board of charities and reform to the warden stating that, considering Uram's past record, the board had decided to exercise the authority given them by section 628, Wyo. C. S. 1920, to transfer him to the penitentiary, and that the warden is authorized to register the prisoner as an inmate of that prison. The "official record and minute book" of the board does not show that the question of confinement of plaintiff was presented to or acted upon by the board before the above letter was written.

Second: The minutes of a meeting July 3, 1929, of the state board of pardons showing that attention was called to the fact that plaintiff "was sentenced on November 13, 1928, for burglary to serve an indefinite term at the Wyoming Industrial Institute. He was brought to the penitentiary to be held until Mr. Moncur could send for him. When it was learned that he had already served a sentence at the industrial institute and one in the Wyoming penitentiary beside a more recent one in Montana, the board ordered his detention at the penitentiary instead of sending him on to the industrial institute." The record then recites: "It is now desirable that he be given a penitentiary sentence carrying a minimum and maximum. Motion made and carried fixing sentence at 7 to 14 years."

Third: The minutes of a meeting may 7, 1934, of the board of charities and reform showing that:

"The case of Mike Uram, No. 4071, had the attention of the Board. This man was sentenced to the Wyoming Industrial Institute on November 13, 1928, from Lincoln County to a term of not over 14 years, but was recognized as a former convict while held at the Penitentiary pending removal to Worland. For the purpose of completing the record it was moved and unanimously carried that the transfer of Mike Uram to the State Penitentiary for confinement under the Board authority as provided by Section 912, Chapter 108, Revised Statutes 1931, be and it is hereby approved, and further that the action taken by the board of July 3rd, 1929, imposing a minimum sentence of 7 years be set aside."

The plaintiff was not present at any meeting of the board of charities and reform or the board of pardons when...