Bowers v. Wilson

• Decision Date: 28 April 1936
• Docket Number: 32828.
• Parties: BOWERS et al. v. WILSON, Chief of Police, et al.
• Court: Kansas Supreme Court

56 P.2d 1212

143 Kan. 732

BOWERS et al. v. WILSON, Chief of Police, et al.

No. 32828.

Supreme Court of Kansas

April 28, 1936

Syllabus by the Court.

Prisoners paroled by police judge in city of first or second class are not entitled to be released from custody on ground that no notice of hearing was given and that no hearing was held prior to termination of parole (Rev.St.1923, 12--1103 12--1104, 12-- 1107, 20--301; Rev.St.Supp.1933, 13--628a 13--628b).

District court had no authority in its supervisory capacity over inferior court to review action of police judge of city of Wichita in refusing, granting, or terminating paroles (Rev.St.1923, 12--1103, 12--1104, 12--1107, 20--301; Rev.St.Supp.1933, 13-- 628a, 13--628b).

Term "appellate court" within statute providing that judge's action in refusing, granting, or terminating paroles shall not be subject to review by appellate court held not to refer only to court to which appeal had actually been taken, but to courts generally which have appellate jurisdiction (Rev.St. 1923, 12--1107).

Order of district court discharging prisoners held a "final order," and hence was appealable (Rev.St.1923 60--3302).

Prisoner who has been paroled is not entitled to have time during which prisoner was at liberty counted on term of original sentence (Rev.St.1923, 12--1104).

In a habeas corpus proceedings, the district court of Sedgwick county undertook to review the entire record of the police court in the city of Wichita, including the original convictions of two women for violation of a city ordinance the conditions imposed in the paroles, and the action of the police court in terminating the paroles. The record examined and held:

(a) Prisoners paroled by a police judge in a city of the first or second class are not entitled to be released from custody on the ground no notice of hearing was given and no hearing was held prior to the termination of the paroles.

(b) Under the provisions of 1933 Supp. R.S. 13--628a, 13--628b, R.S. 20--301, R.S. 12--1104, 12--1107, the district court of Sedgwick county had no authority in its supervisory capacity over inferior courts to review the action of the police judge of the city of Wichita in refusing, granting, or terminating paroles.

(c) A prisoner who has been paroled is not entitled to have the time during which she was at liberty on paroles counted on the term of the original sentence. R.S. 12-- 1104.

Appeal from District Court, Sedgwick County, Division No. 3; Grover Pierpont, Judge.

Habeas corpus proceeding by Oneta Bowers and another against O. W. Wilson, Chief of Police of the City of Wichita, and others. From an order of the district court discharging the petitioners, respondents appeal.

Reversed, and petitioners returned to custody of respondents.

Vincent F. Hiebsch, K. W. Pringle, and Forest C. McCalley, all of Wichita, for appellants.

T. A. Sullivan and John F. Eberhardt, both of Wichita, for appellees.

WEDELL Justice.

This was a habeas corpus proceeding in which the district court ordered the discharge of two women whose paroles had been revoked by the police judge of the city of Wichita. From the order discharging the prisoners, respondents have appealed.

Respondents are the chief of police and the police judge of the city of Wichita. Petitioners were on the 6th day of May, 1935, arrested by a police officer in the city of Wichita, on the grounds of having narcotics in their possession, for vagrancy, and as dope fiends. They pleaded guilty to the charge of vagrancy and were sentenced to one year in the city jail. On the 29th day of July, 1935, petitioners were paroled by the police judge. The police records did not disclose the conditions imposed by the paroles. In the habeas corpus proceedings there was conflict of evidence with regard to the conditions imposed. On behalf of petitioners there was evidence they were paroled on the condition they leave the city of Wichita and remain away for a period of one year. One of them also testified that she spoke to the police judge and inquired whether she could return to the city of Wichita for the purpose of procuring a divorce, and that she was told she could return at any time. The verified return of the writ signed by the police judge specifies the conditions of the paroles as follows: "On condition that they leave the city of Wichita and remain outside of said city until one year after May 6, 1935, and that they violate no law of the state of Kansas or ordinance of the city of Wichita." As to leaving the city of Wichita, the evidence of respondents was that petitioners desired to leave the city of Wichita and return to Oklahoma City, where they had relatives; in other words, that petitioners suggested that condition themselves. Respondents did not rely upon the condition of petitioners leaving the city of Wichita as a valid condition of parole, but contended that, since petitioners sought a parole on the ground they leave the city of Wichita, they should not be permitted to violate their own promise in that regard and thus avoid serving the remainder of their sentence. Respondents contended the other conditions of the paroles were also violated.

When petitioners were originally apprehended, one of them had morphine in her possession which she had obtained at a drugstore under a prescription from a doctor. She stated to the officer she was going to use the morphine by reason of a head injury. On that occasion the officers found cooking outfits and eight needles, together with a spoon and a tobacco can lid used for dope, in petitioners' rooms. Petitioners returned to Wichita on about the 12th day of August, 1935, and were again apprehended by the police, and the paroles were revoked. There is a conflict of evidence as to whether there was a hearing at the time the paroles were revoked. In the habeas corpus proceeding the arresting officer testified he arrested petitioners in an alley about 10 o'clock at night on August 12th, while they were talking to a man back of a lunchroom. He stated: "They were doped up and they talked rather incoherently. He couldn't understand all that they were saying. They had trouble in maintaining a perfect equilibrium. They had a hazy look in their eyes, and to his knowledge were under the influence of dope. There was no smell of liquor upon them. The women were not searched at that time but certain dope equipment was taken off of them by the matron. *** When petitioners first noticed him while in the alley they started to run. *** He picked the petitioners up because of the condition they were in. *** That the buildings were not flush with the alley; that some of them were set back a short distance resulting in dark recesses. It was back in one of these recesses that he saw the petitioners."

In the course of the examination of the police judge he testified: "There is no such charge as use of narcotics or being a narcotic addict, except that when it is used the user becomes drugged or intoxicated and they violate the ordinance against drunkenness. At the time they were first arrested they were charged with 'narcotics in possession; vagrancy and dope addict,' as shown by the record. They were sentenced only on the charge of vagrancy. Vagrancy includes prostitution. It is a violation of the ordinance to have possession of narcotic needles or equipment." During the trial in the district court Ruth Hannum, one of the petitioners, testified concerning the occasion of August 12th, when they were picked up in the alley, as follows: "She had not been using dope and never used it. Her sister, the other petitioner, had the dope equipment consisting of a needle, little cooking utensil and the syringe in her purse. She and her sister had been together at all times since leaving the city. Her sister was not on dope. She suffered from her head and had taken a little at times. She had been injured when a child. At the time she was arrested in May she was not working. She was living at 805 North St. Francis Avenue by herself. Her sister lived at the same place and was just keeping house. Her husband who was separated from her came to see her once in a while. He was paying her room rent and their people were helping to support them."

The captain of the police department and head of the vice squad testified concerning the occasion on August 12th and 13th as follows: "He saw them at the time they were first brought into the station. At that time, from his observation, they needed a shot of morphine. He saw them the next morning after they were picked up on August 12th. They looked at that time as if they had been drunk.

"He knew their general reputation over on Elm Street and Maple, that they were hustling girls. At the time they were paroled they were paroled on the condition that they would not violate any of the state laths or the city ordinances."

"That at the time they were paroled they said they wanted to go to Oklahoma. They were then paroled for a year from the date of the first sentence."

"According to the records they had been convicted of narcotics in possession in Oklahoma. He had seen the conviction records, being the D. J. record from Washington. Witness had known them seven or eight months at the time he first investigated them before their first arrest. He had complaints from neighbors that they were hustling. He saw them sitting in the window on several occasions when the window would be open."

During a recess period of the hearing in the district court, one of the petitioners was married to a party who was interested in obtaining a parole for petitioners. After this incident, the court continued the hearing until a later hour in the day and directed respondents to investigate the record of the man to whom that petitioner had...