In re C. H. Charles and Louis Howard

• Citation: 115 Kan. 323,222 P. 606
• Decision Date: 24 January 1924
• Docket Number: 25,379
• Parties: In re C. H. CHARLES and LOUIS HOWARD, Petitioners
• Court: Kansas Supreme Court

222 P. 606

115 Kan. 323

In re C. H. CHARLES and LOUIS HOWARD, Petitioners

No. 25,379

Supreme Court of Kansas

January 24, 1924

Decided January, 1924.

Original proceedings in habeas corpus.

Petitioners Discharged.

SYLLABUS

SYLLABUS BY THE COURT.

HABEAS CORPUS--Prisoners Confined in State Prison--Released to Enlist in United States Army--Release a Commutation of Sentences and Not Conditional Pardons. Instruments by virtue of which prisoners confined in the state penitentiary were released in order that they might enlist in the army of the United States for service in the world war, interpreted, and held, the instruments were commutations of sentence, and not conditional pardons.

T. W. Bell, of Leavenworth, and James H. Guy, of Topeka, for the petitioners.

Charles B. Griffith, attorney-general, and Donald W. Stewart, assistant attorney-general, for the respondent.

OPINION

BURCH, J.:

The proceeding is one of habeas corpus. The petitioners were released from the penitentiary to enter the army of the United States for service in the world war. Long after they had been honorably discharged from the army, their release papers were revoked for breach of condition subsequent, and they were arrested and were returned to the penitentiary for confinement during the unexpired portions of their terms. The petitioners contend they were discharged unconditionally.

In the year 1918, the inmates of the Kansas state penitentiary manifested a remarkable spirit of patriotism. The eagerness to serve their country of 196 men was gratified by release for enlistment in the American and Canadian armies, and 359 others drilled for service with wooden guns within the prison enclosure. Convicts serving terms of imprisonment were not eligible to enlist in the army. It was necessary that applicants for enlistment have the privileges of citizenship, and arrangements to restore such privileges were effected for those who were released.

The evidence discloses that the governor in 1918 now has no recollection of individual cases. They were handled by his parole and pardon clerk, and the governor has no recollection of any general policy to grant unconditional discharges to convicts released to enter the army. The parole and pardon clerk is not aware that any such policy existed, and his practice was to procure the signature of the governor, should the governor approve, to documents intended as conditional pardons. These documents discharged from custody and restored privileges of citizenship, but contained conditions subsequent which, if violated, authorized reincarceration. Referring to the cases of Charles and Howard, the parole and pardon clerk testified as follows:

"In each of these cases this form of discharge was granted the prisoners named.

"I at no time made any agreement or promise, either individually or on behalf of the governor, with these prisoners, that if they entered the service they should receive a full and free and unconditional pardon, nor do I know that any person connected with the governor's office gave any such promise to them. Indeed, it was not the practice of the governor at this time to issue to any persons who were either on parole or conditional pardon, a full pardon without conditions, until the expiration of the term for which they were imprisoned."

The warden of the penitentiary testified as follows:

"Your affiant was not personally and directly concerned with the exact terms and conditions under which they [the petitioners] left, and does not know of any specific or general promise made to them relative to their future responsibility to the state. Your affiant himself did not promise them, or either of them, that if they enlisted in the army they would be completely and unconditionally pardoned. However, your affiant now has the impression, gained from some source, that it was his idea and understanding at that time that if these men entered the service of the government and served faithfully and well, the state would consider the debt they owed society paid, and would not hold them to a performance of the usual conditions imposed in conditional discharges."

The record clerk and parole officer of the penitentiary understood that discharges to permit enlistment in the army were unconditional pardons, and when Charles was dressed out, he told Charles to be a good soldier, and when the war was over he would be a free man, without further responsibility to the state for his offense. Howard was paroled in June, 1918. He was not able to enter the army without a pardon, and when in November arrangements were made for his pardon, he understood it would set him free unconditionally. As soon as the prisoners were released from the penitentiary they were inducted into the army, and the instruments of release were not delivered to them personally, but were sent to relatives.

On August 9, 1918, Charles was paroled upon an instrument signed by the governor and accepted by Charles in writing, the operative portions of which read as follows:

"Now therefore, by virtue of the authority vested in me by the laws of this state, I do hereby parole and temporarily release from the penitentiary the said C. H. Charles until inducted, upon the following conditions, viz.:

"1. That he shall abstain from the use of intoxicating liquors.

"2. That he shall not frequent places where intoxicating liquors are sold or drunk.

"3. That he shall not engage in any form of gambling, or frequent places or company where or by whom gambling is done, including pool halls and similar places not frequented by the best citizens of his community.

"4. That he shall abstain from criminal, vicious, lewd, or unworthy associates, keeping his conduct at all times consistent with that of the best and most respected citizens of his community.

"5. That he shall, on the first day of each month, make a report in writing, to the warden of the penitentiary, giving a statement of his occupation, location, and condition, the name of his employer, and such other facts as the warden may require.

"6. Paroled to enter military service.

"Whenever the governor of Kansas is satisfied that the paroled prisoner has violated any of the above conditions, or that the purposes and objects of this parole are not being subserved, he may issue his writ, ordering and directing that the said C. H. Charles be arrested and delivered to the warden of the penitentiary, to be received and kept, under the terms of the original judgment of conviction and commitment."

On September 13, 1918, there was issued to Charles a document entitled "Discharge of Paroled Prisoner," the operative portions of which read as follows:

"Now therefore, by virtue of the authority vested in me by the laws of this state, I do approve said recommendation and commute the sentence of said paroled prisoner, so that it shall terminate September 18, 1918, at which time he is restored to all the rights, privileges, immunities, and franchises possessed by him before such conviction.

"This pardon is granted upon the following conditions, and release under this document shall be an acceptance of each and all of such conditions, viz.: Called to the U.S. service by draft.

"1. Said C. H. Charles shall,...