Ex parte Tabor, 38883

• Decision Date: 06 December 1952
• Docket Number: No. 38883,38883
• Parties: Ex parte TABOR. TABOR v. HUDSPETH, Warden, et al.
• Court: Kansas Supreme Court

Page 793

250 P.2d 793

173 Kan. 686

Ex parte TABOR.

TABOR v. HUDSPETH, Warden, et al.

No. 38883.

Supreme Court of Kansas.

Dec. 6, 1952.

Syllabus by the Court.

1. Under and by virtue of the provisions of G.S.1949, 62-1525, the legislature has granted the Warden of the Kansas State Penitentiary power and authority to revoke the paroles of convicts, still under legal commitment to that institution, without a hearing and in connection therewith to issue warrants for the arrest of such paroled prisoners and, under that process, have them brought back within the enclosure of the penitentiary.

2. The statute G.S.1949, 62-1525, authorizing the Warden of the Kansas State Penitentiary to revoke a paroled prisoner's parole, to order his arrest and to have him brought back within the walls of the penitentiary to serve out his sentence, all without notice and hearing, is not unconstitutional (1) as violative of the constitutional guaranty of due process or (2) as delegating unreasonable and unlawful power and authority to the warden of such institution.

3. An inmate of the penitentiary who is granted a parole accepts such parole subject to the terms and provisions of G.S.1949, 62-1525, authorizing its termination without notice or hearing, and hence is precluded from claiming he was entitled to have the question whether he had violated the conditions of his parole adjudicated before such parole was revoked.

4. The record, on appeal from a judgment of the district court denying petitioner a writ of habeas corpus, examined, and held, to disclose no error.

J. R. Hyland and H. N. Hyland, both of Washington, on the briefs for petitioner (appellant).

Harold R. Fatzer, Atty. Gen., and Paul E. Wilson, Asst. Atty. Gen., on the briefs for respondent (appellee).

PARKER, Justice.

This is an appeal from an order of the district court of Washington County denying a petition for a writ of habeas corpus.

The case, although commenced in the district court of Washington County against the three respondents above named, challenges the validity of parole revocation proceedings under which petitioner, who had been paroled from the penitentiary, was returned thereto and is now being held therein by the respondent Warden for the purpose of serving the unexpired term of a valid sentence imposed against him by the district court of Washington County for the commission of the crime of statutory rape. Therefore throughout this opinion we shall discuss the issues involved as if it had been commenced against the Warden alone and no other respondents were involved.

Chronologically the events leading up to the controversy, many of which are of little importance and serve only to complete the factual picture, can be stated thus: On October 29, 1949, petitioner entered a plea of guilty to the crime of statutory rape in the district court of Washington County and was sentenced to confinement at hard labor in the Kansas State Penitentiary for a term of not less than one or more than twenty-one years. Some eleven months later, pursuant to his application and in conformity with the provisions of the statute relating to the granting of paroles, he was granted a parole by the State Board of Administration which was subsequently approved by the Governor. This parole directed the respondent, as Warden, to release petitioner from confinement in the penitentiary but not from legal custody. On or about October 12, 1950, in conformity with the Board's order, the respondent permitted petitioner to leave the penitentiary upon parole and he returned to his wife and home in Washington County. Apparently, so far as known to the prison authorities, petitioner had little if any trouble until sometime during the spring of 1952. The record discloses that on or about March 15, 1952, upon complaint of his wife, he was arrested upon a charge of disturbing the peace and was confined in the county jail. At or about the same time information concerning his arrest was brought to the attention of Carl A. B. Swanson, a parole officer of the penitentiary, who initiated an investigation concerning hisconduct. As a result of that investigation Swanson submitted a delinquency report to the respondent in which he reported that prior to his arrest petitioner had been having serious trouble with his wife and step-daughter, the latter being the minor involved in the matter which had resulted in his being sentenced to the penitentiary, and advised, in substance, that petitioner's threats against his wife and his activities in connection with his step-daughter were of such serious nature that they could not be overlooked.

The record further reveals that on March 19, 1952, through some arrangements between the parole officer and the prosecuting attorney of Washington County, the criminal complaint which had been filed against petitioner was dismissed and that thereafter the then sheriff of Washington County was instructed to keep petitioner in the county jail until arrangements could be made to return him to the penitentiary as a parole violator.

Following receipt of the parole officer's report the respondent on April 9, 1952, issued his written order for the arrest of the petitioner as a paroled prisoner. Among other things this order recited petitioner had violated the conditions of his parole and directed that he be forthwith arrested and returned to the penitentiary to serve as much of the remainder of his unexpired statutory rape sentence as the Board of Administration should thereafter determine.

Petitioner commenced the instant action on April 8, 1952, by the filing of a petition in which he claimed that he was illegally deprived of his liberty. Thereafter, and obviously after the sheriff had received the respondent's order and was holding petitioner in custody in compliance with its terms, the petitioner filed an amended petition wherein he attacked the validity of the parole proceedings under which he was then being held on constitutional grounds; charged that he was illegally restrained of his liberty; and asked that the district court issue a writ of habeas corpus discharging him from his unlawful imprisonment. Respondent then filed an answer to the amended petition wherein he denied all claims made respecting the invalidity of the parole revocation proceedings under which petitioner was then being held in custody; described in detail the proceedings resulting in the revocation of petitioner's parole and the issuance of the warrant for his arrest; asserted that such proceedings were valid and gave him the right to hold petitioner in his custody in the penitentiary until he had served the unexpired term of the statutory rape sentence from which he had been paroled; and prayed that the writ be denied.

With issues joined as above indicated the district court found generally against the petitioner and denied the writ. Thereupon petitioner perfected this appeal in which he relies upon three propositions as grounds for reversal of its judgment. In the order we desire to treat them the questions thus raised read:

1. 'Has petitioner and appellant been deprived of due process of law by the action of the Warden in revoking his parole without affording a hearing as to whether the parole had been violated?

2. 'Is that portion of 62-1525 General Statutes of Kansas of 1949, which authorizes the Warden to revoke paroles and retake and reimprison inmates upon parole, unconstitutional, as being an unreasonable and unlawful delegation of power?

3. 'Is the particular agreement such an agreement that it can be terminated and revoked by one of the parties with no adjudication that it has been violated by the other party?'

Inasmuch as the foregoing questions relate to and require construction of G.S.1949, 62-1525, the provisions thereof, pertinent to their disposition, should be set forth at this point. They read:

'The said prison board shall have power to establish rules and regulations under which prisoners within the penitentiary may be allowed to go upon parole outside the penitentiary building and enclosure, but to remain while on parole in the legal custody and under the control of the prison board, and subject at any time to be taken back within the enclosure of said penitentiary: Provided, That no parole shall be granted in any case until the minimum term fixed by law for the offense has expired. And full power to enforce such rules and regulations and to retake and reimprison any inmate so upon parole is hereby conferred upon the warden, whose order, certified by the clerk of the prison, with the seal of the penitentiary attached thereto, shall be a sufficient warrant for the officer named in it to authorize such officer to apprehend and return to actual custody any conditionally released or paroled prisoner, and it is hereby made the...