In re Duane Hall

• Decision Date: 02 February 1927
• Citation: 136 A. 24,100 Vt. 197
• Parties: IN RE DUANE HALL
• Court: Vermont Supreme Court

136 A. 24

100 Vt. 197

IN RE DUANE HALL

Supreme Court of Vermont

February 2, 1927

January Term, 1927.

PETITION to the Supreme Court of Windham County by Duane Hall for a writ of habeas corpus to secure his discharge from the State prison at Windsor. The opinion states the case.

It is adjudged that the petitioner is not illegally deprived of his liberty, and he is remanded to the State prison whence he was taken, and his petition is dismissed.

William W. Lapoint for the petitioner.

J Ward Carver, Attorney General, and T. Tracy Lawson, for the State.

Present WATSON, C. J., POWERS, SLACK, FISH, and MOULTON, JJ.

OPINION

MOULTON

This is a petition for a writ of habeas corpus. It appears that the petitioner was on December 17, 1920, convicted of the crime of rape by the municipal court of Bellows Falls, and was sentenced to be confined at hard labor in the State prison in Windsor for not less than five years, and not more than seven years, and to pay a fine and costs. The execution of the sentence of imprisonment was ordered suspended, upon the payment of a certain part of the fine, and the petitioner was committed to the charge of the State probation officer for the term of seven years from the date of his conviction, upon certain conditions as to his behavior, not necessary here to set forth. On April 22, 1925, he was charged, by one of the deputy probation officers, with a violation of the terms and conditions of his probation, and was brought before the municipal court, which after having inquired summarily into his conduct subsequent to his release on probation, found that he had violated certain conditions thereof, and committed him to the State prison on his original sentence of imprisonment, there to "remain until the expiration of his sentence, or until he is otherwise discharged in accordance with law." The mittimus issued recited the above facts, and is set forth in full in the petition, and therein is also contained an allegation that the fine and costs were paid, and a denial of any violation of the conditions of probation.

The petitioner contends that he has been deprived of his liberty without due process of law, in that he was denied a hearing upon the question of his breach of probation. As to this however, it is sufficient to say that the fact does not so appear. No evidence was taken in support of the petition and the only basis for the claim is the recital of the record contained in the petition, that upon being brought before the court by the deputy probation officer, "the court having inquired summarily into the conduct of the said Duane Hall, subsequent to his release on probation, and the court being satisfied that the said probationer Duane Hall has violated certain conditions of his said probation, it is therefore ordered" that he should be committed to the State prison.

G. L. 7305 provides that where a probationer is charged with violation of the terms, and conditions of his probation, he shall be forthwith brought before the court, wherein he was convicted, or the judges thereof, and such court or judges "shall inquire summarily into the conduct of the probationer subsequent to his release on probation." This means that such inquiry shall be speedy and informal, unhampered by the procedure incident to a common law trial. In re McAllister, 97 Vt. 359, 361, 123 A. 207. And as in that case, so in this, nothing has been called to our attention to show that the hearing accorded the petitioner fell short of that contemplated by the statute.

The petitioner further claims that the action of the court in suspending the execution of the imprisonment part of the sentence was in the nature of a conditional parole and an encroachment upon the exclusive prerogative of the governor, as provided in Ch. II, section 20 of the Constitution of this State; and contends that, being without authority so to act, the court lost control of the prisoner, and could not thereafter legally order his commitment to prison.

Upon the question whether a Court has the inherent power to suspend the execution of a sentence indefinitely, the authorities are in conflict. See Ex parte United States, 242 U.S. 27, 61 L.Ed. 129, 142, 143, 37 S.Ct. 72, L.R.A. 1917E, 1178, Ann. Cas. 1917B, 355, and cases therein cited. But it is not material to discuss this proposition, because the issue in the instant case arises under the statute (G. L. 7299) providing that, in a proper case, the court

"shall pass sentence upon the accused, if he is convicted, and may then suspend all or part of such sentence, and place the person so convicted and sentenced in the care and custody of the state probation officer upon such conditions and for such time as it may prescribe * * * * * *."

It is generally held that statutes which confer upon a court the power to suspend execution of sentence, and commit the respondent to the custody of the probation officer are valid, and do not contravene the constitutional provisions which vest the pardoning power in the executive. Richardson v. Commonwealth, 131 Va. 802, 109 S.E. 460, 462; State ex rel. Tingstad v. Starwich, 119 Wash. 561, 206 P. 29, 31, 26 A. L. R. 393; Ex parte Giannini, 18 Cal.App. 166, 122 P. 831, 832; People ex rel. Forsyth v. Court of Sessions, 141 N.Y. 288, 36 N.E. 386, 23 L.R.A. 856, 858; Belden v. Hugo, 88 Conn. 500, 507, 91 A. 369, 371. In the case last cited it is said:

"In passing upon this question, it is important that we gain a correct conception of the character of that which the statute authorizes the courts to do in the matter of stays of execution. In no true sense is it an exercise of the pardoning power * * * * * * * * *. The General Assembly defines the punishments which may be imposed and it may gather around those punishments such incidents or conditions as it may deem wise. Statutes which prescribe these incidents or conditions, although general in their application, are dealing with the punishment and their provisions enter into and form a part of it. * * * * *. When some such provision results in a * * * * stay of execution with a probation commitment, that result does not have its source in an exercise of the pardoning power. It comes in the due course of the operation of the...