Hostettler v. Hudspeth
| Decision Date | 04 October 1947 |
| Docket Number | 36939. |
| Citation | 163 Kan. 647,184 P.2d 994 |
| Parties | HOSTETTLER v. HUDSPETH. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
In an original proceeding in habeas corpus petitioner was at liberty from the penitentiary on parole. His parole was revoked. Before he was returned to the state penitentiary he was delivered to the federal authorities, where he was tried convicted and sentenced to the federal penitentiary for another offense. Upon his release from having served that sentence he was taken into custody and is being held by the state authorities in the penitentiary as a parole violator under the original commitment. Held petitioner is not entitled to be released.
Harold E. Doherty, of Topeka, for petitioner.
Harold R. Fatzer, Asst. Atty. Gen. (Edward F. Arn, Atty. Gen., on the brief), for respondent.
This is an original proceeding in habeas corpus wherein petitioner seeks to be released from confinement in the state penitentiary at Lansing, where he is confined under a commitment issued out of the District Court of Wyandotte County under date of April 6, 1929.
There is not much dispute about the facts.
Defendant was found guilty of theft of an automobile. On April 6, 1929 he was sentenced on that charge to a term of not less than 10 nor more than 20 years. The sentence was doubled on account of a previous conviction of a felony. He was received at the penitentiary April 6, 1929.
Some time during 1936 he was paroled from that sentence. Some time during 1938 this parole was revoked and he was returned to the prison. So far no complaint is made by him as to the regularity of the proceedings. During May, 1939, he was again permitted to go on parole. Some time in August he was again apprehended. The actual circumstances are not quite clear. The arrest took place in Missouri. He claims he was arrested in Missouri for violating his parole. The respondent does not concede this to be a fact. The record discloses his parole was not revoked until some time later. At any rate, he was taken to Kansas City, Kansas, and held there for about 26 days.
During that time he was indicted by the United States for the crime of post office robbery. He was surrendered to the federal authorities, tried, convicted and sentenced to 10 years confinement in the United States Penitentiary at Leavenworth. He was received there January 2, 1941. He was released therefrom December 27, 1946. Immediately on his release he was taken into custody by Kansas authorities under what is called a 'Hold Order.' This is an order whereby the authorities of one jurisdiction request the authorities of another jurisdiction to deliver a prisoner whose confinement is about to expire so that the authorities of the first jurisdiction may deal with him. It is quite commonly used by law enforcement officials.
The petitioner was delivered to the Kansas authorities by the federal authorities and he was taken to the state penitentiary, where he is now being held.
His sole complaint is that when the Kansas authorities had possession of his person in 1940 and surrendered possession of him to the federal authorities they then lost jurisdiction to punish him further. What the argument amounts to is that when a parole violator is taken into custody by state authorities whose parole he has violated, these authorities must take him back to the penitentiary forthwith, that is they can do nothing else--either that or set him at liberty again on another parole.
There are two reasons why that...
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...err in denying the writ of habeas corpus and in remanding the petitioner to the custody of the sheriff.' See also Hostettler v. Hudspeth, 1947, 163 Kan. 647, 184 P.2d 994; People ex rel. Pepe v. Ashworth, Sup.1941, 31 N.Y.S.2d 225; 147 A.L.R. 943 annotation As a general rule the surrender o......
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