Illova, In re, 487

• Decision Date: 04 March 1958
• Docket Number: No. 487,487
• Citation: 88 N.W.2d 589,351 Mich. 204
• Parties: In the Matter of Johnny ILLOVA. Motion
• Court: Michigan Supreme Court

Page 589

88 N.W.2d 589

351 Mich. 204

In the Matter of Johnny ILLOVA.

Motion No. 487.

Supreme Court of Michigan.

March 4, 1958.

Johnny Illova, in pro. per.

Thomas M. Kavanagh, Atty. Gen., for the State.

Before the Entire Bench.

SMITH, Justice.

This is a petition for writ of habeas corpus. The petitioner is presently confined in the State prison of Southern Michigan. He asserts that he is unlawfully and illegally confined because of lack of jurisdiction in the State.

The return of the recorder's court to our writ of certiorari shows the following:

'1. On July 9, 1952, upon the sworn complaint of William Frank, Detroit police officer, and the written recommendation of the prosecuting attorney, a warrant was issued by Judge John P. Scallen accusing Johnny Illova, hereinafter called defendant, of the unlawful possession of narcotics in violation of section 3, Act 266, P.A.1952, on July 8, 1952, in the following substance:

"Not then and there having a license as required under the provisions of Act No. 343, P.A.1937, as amended, being sections 335.51 to 335.78, inclusive, C.L.1948, did then and there possess or have under his control a certain narcotic drug, to-wit: Forty (40) capsules containing 52.79 grains of heroin, said heroin hydrochloride being a compound, manufacture, preparation and derivative of opium.'

'Defendant was arraigned on same date before Judge Scallen; a plea of not guilty was entered and bail was set at $3,000. Examination was scheduled for July 17, 1952, adjourned to July 23, and to July 25, when it commenced before Judge John P. Scallen. He was bound over for trial.

'On July 31, 1952, the defendant was arraigned on information which reiterated the charge in the complaint and warrant; a plea of not guilty was entered when defendant stood mute.

'2. Originally scheduled for August 19, 1952, trial was adjourned on two occasions and commenced on October 13, 1952, before the late Judge O. Z. Ide and a jury. The trial concluded on October 14, 1952, with the jury's verdict of guilty of possession of narcotic drugs as charged in the information.

'3. Defendant was represented by retained counsel from arraignment on the warrant through trial.

'4. On October 15, 1952, Judge O. Z. Ide sentenced defendant to imprisonment of not less than five nor more than ten years. See Appendix A for journal entry.

'5. On June 15, 1954, Judge O. Z. Ide modified the sentence nunc pro tunc as of October 15, 1952, to make it run concurrently with a sentence imposed upon the defendant on September 3, 1952, by Judge Arthur F. Lederle, in the United States District Court. See Appendix B for journal entry.'

The jurisdictional question presented in petitioner's brief, not controverted by the State, reads in part as follows:

'The petitioner was first arrested by officer of the city of Detroit, and turned over to Federal authorities, who arraigned him and released him on bond, while on bond he was again arrested by the city of Detroit police, and charged with violating the State narcotic law. While in custody of the city of Detroit authorities, petitioner was relinquished to the Federal authorities for final plea, petitioner pleaded guilty, and was sentenced to a judgment of 5 years.

'Petitioner was then returned to State authorities who tried petitioner, found him guilty and sentenced him to a servitude of 5 to 10 and ran said sentence concurrently with sentence previously imposed by the Federal court.'

The petitioner also asserts that he

'is now confined in the custody of the warden at Jackson, Michigan, under illegal custody, after completing a 5 year term for the Federal government at Leavenworth, Kansas, that was imposed by the Honorable Judge Arthur Lederle, of the District Court for the Eastern District of Michigan, at Detroit, Michigan, on the 3rd day of September, 1952.'

It is the position of the petitioner that the State 'relinquished all rights and claims of imprisoning the petitioner * * * since the State's 5-10 year sentence was ordered to start immediately * * * yet the State transferred its jurisdiction of the petitioner to the Federal government to serve a 5-year sentence.' The claim, then, is a loss of jurisdiction by the State when petitioner was transferred to the Federal authorities to serve the sentence imposed by the Federal courts.

The issue presented is similar in principle to many arising under our system of dual sovereignty, State and Federal. Thus in Hostetler v. Hudspeth, 163 Kan. 647, 184 P.2d 994, 995, a like question of jurisdiction was presented. Petitioner, while serving a sentence in the State penitentiary, was paroled. He was thereafter again apprehended by the authorities and sentenced to 10 years confinement in the United States penitentiary at Leavenworth for post office robbery. When released from Leavenworth, he was delivered by the Federal authorities to Kansas authorities and confined in the State penitentiary. He then...