In re Murphy

• Decision Date: 18 May 1898
• Docket Number: 1,833.
• Citation: In re Murphy, 87 F. 549 (D. Mass. 1898)
• Parties: In re MURPHY.
• Court: U.S. District Court — District of Massachusetts

87 F. 549

In re MURPHY.

No. 1,833.

United States Circuit Court, D. Massachusetts.

May 18, 1898

Brandeis Dunbar & Nutter, Ezra R. Thayer, and Edward F. McClellen, for petitioner.

J. M Hallowell, Asst. Atty. Gen., for respondent, Bridges.

PUTNAM Circuit Judge.

This is an application for a writ of habeas corpus, heard on the return of an order to show cause why a wit should not issue. The petitioner is in prison, under a criminal sentence of the superior court of the state of Massachusetts passed on him May 28, 1896, for a term of not less than 10 nor more than 15 years. It is conceded that, if the sentence was erroneous, the laws of the state gave him a remedy by a writ of error, which is not yet barred; and also nearly two years of his imprisonment have expired without his asking for a writ of error or other relief, prior to the petition at bar. In view of these facts, it is apparent that there are no special circumstances requiring the issue of a writ of habeas corpus, unless his case is clear. When the petitioner's offense was committed, the following statutes were in force in Massachusetts:

'Whoever commits larceny by stealing, of the property of another, money, goods, or chattels, or a bank note, bond, promissory note, bill of exchange, or other bill, order, or certificate, or a book of accounts for or concerning money or goods due or to become due or to be delivered, or a deed or writing containing a conveyance of land, or any other valuable contract in force, or a receipt, release, or defeasance, or a writ, process, or public record, if the property stolen exceeds the value on one hundred dollars, shall be punished by imprisonment in the state prison not exceeding five years, or by fine not exceeding six hundred dollars and imprisonment in the jail not exceeding two years; or, if the property stolen does not exceed the value of one hundred dollars, shall be punished by imprisonment in the state prison or jail not exceeding one year, or by fine not exceeding three hundred dollars. ' Pub.St. c. 203, Sec. 20.

'Every officer in charge of a prison or other place of confinement shall keep a record of the conduct of each prisoner in his custody whose term of imprisonment is not less than four months. Every such prisoner whose record of conduct shows that he has faithfully observed all the rules, and has not been subjected to punishment, shall be entitled to a deduction from of not less than four months and less than one year, one day for each month; upon a sentence of not less than one year and less than three years, three days for each month; upon a sentence of not less than three years and less than five years, four days for each month; upon a sentence of not less than five years and less than ten years, five days for each month; upon a sentence of ten years or more, six days for each month. When a prisoner has two or more sentences, the aggregate of his several sentences shall be the basis upon which the deduction shall be estimated. Each prisoner who is entitled to a deduction from the term of his imprisonment, as aforesaid, shall receive a written permit to be at liberty during the time thus deducted, upon such terms as the board granting the same shall fix. Said permits shall be issued as follows: To prisoners in the house of industry, jail, or house of correction of Suffolk county, by the board of directors for public institutions; to prisoners in the other jails and houses of correction, by the county commissioners of the several counties; to prisoners in the state prison and in the reformatory prison for women, by the commissioners of prisons; to prisoners in the state workhouse, by the trustees of said workhouse. The board issuing a permit as aforesaid may at any time revoke the same, and shall revoke it when it comes to their knowledge that the person to whom it was granted has been convicted of any offence punishable by imprisonment. ' Pub. St. c. 222, Sec. 20.

The petitioner was charged with, and convicted of, several offenses in the same indictment; so that the maximum term for which he was imprisoned does not exceed the penalty permitted by the statutes which were in force when his crimes were committed. But, by the law as it then stood, his term of imprisonment was fixed by the court, and the determination of its length was a judicial act, subject, of course, to his option to avail himself of a permit to be at liberty, as provided by the statute cited, if he entitled himself thereto. This clearly did not operate to limit the term of his imprisonment except at his own will. So it could not work to his prejudice, as it might possibly be conceived to be against the interest of a prisoner to be cast temporarily on the community at large against his own election, under circumstances which permitted him to be recalled at some indefinite period, also against his own election.

At the time the petitioner was sentenced the following statute was in force:

'Sec. 2. At any time after the expiration of the minimum term for which a convict may be held in the said prison under a sentence imposed as aforesaid, the commissioners of prisons may issue to him a permit to be at liberty therefrom, upon such terms and conditions as they shall deem best, and they may revoke said permit at any time previous to the expiration of the maximum term for which he may be held under said sentence. No such permit

...