Dowd v. Sullivan
| Decision Date | 13 May 1940 |
| Docket Number | 27351. |
| Citation | 27 N.E.2d 82,217 Ind. 196 |
| Parties | DOWD, Warden, v. SULLIVAN. |
| Court | Indiana Supreme Court |
Omer S. Jackson, Atty. Gen., Jas. P. Hughes, 1st Asst. Atty. Gen and Jas. K. Northam, Deputy Atty. Gen., for appellant.
Oscar B. Thiel, of Gary, for appellee.
The appellee was discharged from the custody of the appellant upon a writ of habeas corpus. In February, 1930, he was convicted of a felony and sentenced for a term of from one to ten years. He was over thirty years of age at the time of his conviction, and therefore was sentenced to serve his imprisonment in the Indiana State Prison. He was released on parole in February, 1932. While at liberty he was charged and convicted of a felony, and sentenced to the Indiana State Prison for a term of ten years. He was returned to the Indiana State Prison by the officer having this commitment and the commitment was delivered to the warden. Upon his return, he was treated as a returned parole violator, and under the rules, he was fined three years for parole violation under his first commitment. On October 4, 1935, he was discharged under his first commitment, and held under the second or ten-year commitment, which was treated as beginning at that time. It was contended in the petition for habeas corpus that his term of imprisonment under the ten-year commitment began to run when he was returned to the prison, and that, allowing deductions for good time, which it was conceded he was entitled to, he had served the full second sentence.
The writ was issued upon the theory that his second sentence began to run from the time he was delivered to the warden under this commitment. It is contended by the State that his ten-year term did not begin to run until he had satisfied the first sentence.
Section 13-210, Burns' Ind.St.1933, section 13482, Baldwin's Ind.St.1934, which was enacted in 1857, and which has never been expressly repealed, provides: 'The term of service and imprisonment of every convict shall commence from the day of his conviction and sentence.' Acts 1857, chapter 56,§ 6, page 103.
In 1897 the Legislature enacted certain laws providing for indeterminate sentences. Chapter 53 of the Acts of 1897 (Acts 1897, page 69, Burns' Ind.St.1933, section 13-401 et seq., Baldwin's Ind.St.1934, section 13597 et seq.) has become known as the Reformatory Act. The last sentence in section 12 of this act (section 13-411, Burns' Ind.St.1933, section 13607, Baldwin's Ind.St.1934) is as follows: 'And any prisoner at large, upon parole or conditional release, who shall commit a fresh crime, and, upon conviction thereof, shall be sentenced anew to the reformatory or the Indiana State Prison, shall be subject to serve the second sentence after the first sentence is served or annulled, said second sentence to commence from the termination of his liability upon the first or former sentence.' There is no mention of the act of 1857, and no express repeal, but the appellant relies upon this sentence as repealing the former act and as controlling the beginning of sentences upon a second conviction of a paroled prisoner from either the State Prison or the Reformatory.
The title of chapter 53 of the act of 1897, supra, is as follows: 'An Act to establish the Indiana Reformatory, provide for the appointment of a Board of Managers and other officers to conduct and control the same, and authorizing them to prescribe rules and regulations for the government thereof and the prisoners therein, the character of persons who may and shall be confined therein, the manner of procedure in the trial of all felony cases, except treason and murder in the first and second degree, when the prisoner is more than sixteen and less than thirty years of age, and the sentences that shall be passed upon such persons, and the manner in which such sentences shall be executed, and the transfer of prisoners to and from said Reformatory and the State Prison, changing the name of the Indiana State Prison North, providing for the transfer of the property, contracts and control of the State Prison South to said Reformatory, regulating the disposition of earnings and certain other matters relating thereto and declaring an emergency.'
It is contended by the appellant that this title is broad enough to cover prisoners in the Indiana State Prison. It is said in the brief: But the title only covers 'the manner of procedure in the trial of all felony cases, except treason and murder in the first and second degree, when the prisoner is more than sixteen and less than thirty years of age, and the sentences that shall be passed upon such...
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