Application of Jerrel

• Decision Date: 22 December 1958
• Docket Number: No. 9731,9731
• Citation: 77 S.D. 487,93 N.W.2d 614
• Parties: Application of Dan JERREL for a Writ of Habeas Corpus.
• Court: South Dakota Supreme Court

Page 614

93 N.W.2d 614

77 S.D. 487

Application of Dan JERREL for a Writ of Habeas Corpus.

No. 9731.

Supreme Court of South Dakota.

Dec. 22, 1958.

Robert L. O'Connor, Sioux Falls, for petitioner-appellant.

Phil Saunders, Atty. Gen., E. D. Barron, Asst. Atty. Gen., for respondent.

BOGUE, Judge.

The petitioner appeals from the order and judgment quashing a writ of habeas corpus.

The petitioner on the 9th day of April, 1956, was found guilty of the crime of grand larceny by a jury in Corson County, South Dakota. Thereafter the trial judge sentenced this petitioner 'to five years in the South Dakota State Penitentiary which is suspended during good behavior and you are subject to and must comply with the rules and regulations of the South Dakota Department of Probation and Parole; provided further that as a part of this sentence you may return to your home State of Montana but shall remain under the jurisdiction of the Department of Probation and Parole to which you shall report on the first day of each month in writing by mail. You shall comply with the provisions of Section 13.5307 which will be supervised by the Department of Probation and Parole of the State of South Dakota or the State of Montana if accepted by them. It is further ordered that restitution in the amount of $100 shall be paid to James Clark within a year from the date of this sentence. Upon your failure to comply with this sentence and judgment you will be dealt with as provided by law.'

A petition for revocation of suspension of petitioner's sentence dated the 21st of August, 1956, was presented to the circuit court of the Twelfth Judicial Circuit, this being the same court that granted the suspension, by the State's Attorney of Corson County. The grounds alleged for revocation of sentence were the following:

'The undersigned has been furnished with information from the Sheriff of Miles City, Montana, stating that said Dan Jerrel had been frequenting bars, been in various altercations, and keeping bad company. Under Letter of August 13, 1956, information has been received advising that subject 'is a frequent visitor in the Miles City area and is affiliated with several well known ex-convicts.' Further the undersigned is advised by the department of Probation and Parole that said defendant has not been making any reports.'

The court on the 23rd of August 1956 ordered that the suspension of petitioner's sentence be revoked and directed that a warrant issue ordering the delivery of the petitioner to the court forthwith. On the same day a bench warrant was issued directing the arrest of Dan Jerrel and directing that he be brought before the court to answer charges and that he be delivered into the custody of the Sheriff of Corson County pending disposal by the court.

On the 29th of September 1956 the petitioner was arrested by Montana authorities based on a fugitive from justice warrant issued out of a justice of peace court in Montana. On the 1st day of October 1956 the petitioner entered a plea of not guilty and the Justice of Peace set the 31st day of October 1956 as the day for trial, and set petitioner's bond in the amount of $1,500. The bond was provided and the petitioner was released.

On the 1st day of October 1956 the State's Attorney of Corson County, South Dakota, made application to the Governor of the State of South Dakota for a writ of extradition. On the 2d day of October 1956 the Governor of South Dakota issued a requisition to the Governor of the State of Montana for this petitioner. On the 4th of October 1956 the Governor of Montana issued a rendition warrant. On the same day the petitioner was arrested and taken to the Great Falls County jail. The petitioner was not taken before a judge of a court of record of the State of Montana, nor was he informed of any rights he might have but was forthwith put into a car and returned to Corson County, South Dakota.

On the 6th day of October 1956 the petitioner was taken before the court. The court summarily ordered the original sentence restored in its entirety and the petitioner committed to the State Penitentiary for a term of five years.

The issues presented by this appeal are: (1) Did the court have jurisdiction to enable it to commit petitioner after revoking his suspended sentence? (2) If the court did have such jurisdiction, was petitioner entitled to a hearing on the question of whether or not he violated the conditions of his suspension?

The petitioner claims that the courts of this state lost jurisdiction when after instituting extradition proceedings in the State of Montana, South Dakota by-passed or abandoned these proceedings and forcibly brought him back to this state. South Dakota adopted the Uniform Law on Interstate Extradition by Ch. 200 of the Laws of 1953. Montana adopted the same act by Ch. 190 of the Laws of 1937. Section 10 of both chapters provide:

'No person arrested upon such warrant shall be delivered over to the agent whom the Executive Authority demanding him shall have appointed to receive him unless he shall first be taken forthwith before a judge of a court of record in this state, who shall inform him of the demand made for his surrender and of the crime with which he is charged, and that he has the right to demand and procure legal counsel; and if the prisoner or his counsel shall state that he or they desire to test the legality of his arrest, the judge of such court of record shall fix a reasonable time to be allowed him within which to apply for a writ of habeas corpus.'

It is undisputed that petitioner was not taken before a judge of a court of record in the State of Montana or that the other provisions of Section 10 were complied with. It must be borne in mind here that the petitioner was not in the position of one accused of a crime. He had already been convicted of a crime.

Pursuant to SDC Supp. 13.55 the Governor of this state executed a compact on behalf of the State of South Dakota with the other states legally joining. Montana expressly joined therein. This compact provided that under certain conditions it would be competent to permit any person convicted of an offense within this state and placed on probation or released on parole to reside in the other state while on probation or parole, also providing that the duly accredited officers of a sending state may enter the receiving state and there apprehend and retake any person on probation or parole. 'For that purpose no formalities will be required other than establishing the authority of the officer and the identity of the person to be retaken. All legal requirements to obtain extradition of...