Jones v. Morrow

• Decision Date: 15 January 1942
• Docket Number: 35453.
• Citation: 121 P.2d 219,154 Kan. 589
• Parties: JONES v. MORROW, Sheriff, et al.
• Court: Kansas Supreme Court

121 P.2d 219

154 Kan. 589

JONES v. MORROW, Sheriff, et al.

No. 35453.

Supreme Court of Kansas

January 15, 1942

Rehearing Denied Jan. 30, 1942.

Syllabus by the Court.

An executive order of Governor of Louisiana for release of one serving sentence in Louisiana state penitentiary from state officials' custody to serve sentence in federal penitentiary on condition that he be returned to state penitentiary if released from federal prison before expiration of sentence to state penitentiary did not constitute "reprieve", "parole", or "pardon", but was in nature of "commutation of sentence", so that prisoner violated no condition attached to release in refusing to return to Louisiana after serving federal sentence and was not "fugitive from justice" of such state as required to authorize his extradition from Kansas. Act La. No. 14 of 1934, 1st Ex Sess., § 2; Const.La.1921, art. 5, § 10.

The real nature of an act of clemency by governor of state is not changed by what it is called, but its effect is determined by what it is.

The record on appeal in a habeas corpus case examined and held:

1. Respondents perfected an appeal only from the judgment which discharged petitioner from their custody.

2. Respondents requested no additional findings of fact and the facts as found by the district court are admitted.

3. The order of the governor of Louisiana, pursuant to which petitioner was released from custody, while serving his state sentence in the state penitentiary of Louisiana, and was delivered to federal authorities and by the latter removed to the federal penitentiary at Leavenworth, Kansas, was in effect a commutation of his state sentence.

4. The admitted facts do not compel or require a reversal of the judgment.

Appeal from District Court, Leavenworth County; James H. Wendorff Judge.

Proceeding by Lester Jones, alias Joe Payne, for a writ of habeas corpus to Ted C. Morrow, Sheriff of Leavenworth County, and others. From a judgment ordering petitioner's discharge from respondents' custody, respondents appeal.

Jay S Parker, Atty. Gen., Jay Kyle, Asst. Atty. Gen., Colonel H Boone, Deputy Co. Atty., of Leavenworth, and M. E. Culligan, Asst. Atty. Gen., of New Orleans, La., for appellants.

Lucien B. Rutherford, of Leavenworth, for appellee.

WEDELL Justice.

This is an appeal in a habeas corpus case. The proceeding was originally brought in the probate court of Leavenworth county. The decision in that court was against petitioner and he appealed to the district court. The latter court found petitioner was illegally imprisoned and detained and ordered his immediate discharge from the custody of respondents. Respondents have appealed.

The district court made findings of fact and conclusions of law. There is no objection by either of the parties to the findings of fact. No additional findings of fact were requested. The decision must, therefore, turn upon the findings as made, which were:

"Sometime, during the month of March, 1937, Lester Jones entered a plea of guilty in the District Court of the United States for the Western District of Louisiana to a

charge of violating the Dyer Act [18 U. S.C.A. § 408] and was, by the court placed on probation without sentencing;

"Subsequently and during the month of March, 1938, said Lester Jones pleaded guilty to two counts of robbery and was, by the District Court for the Parish of Caddo of the State of Louisiana, sentenced to serve ten years in the Louisiana State Penitentiary on each count, the sentences to run concurrently;

"Immediately thereafter, said Lester Jones was taken into the District Court of the United States for the Western District of Louisiana, the probation theretofore granted by said court was revoked and Jones was sentenced to serve five years to run concurrently with the ten year sentences he had just received in the state court;

"Shortly thereafter, said Lester Jones was taken to the Louisiana State Penitentiary at Angola, Louisiana, and delivered into the custody of the Warden of said institution, there to serve the 10 year sentences of the District Court of Caddo Parish, Louisiana, and the 5 year sentence of the United States District Court;

"About one year later, and during the month of April, 1939, said Lester Jones was taken from the Louisiana State Penitentiary where he had been serving the aforesaid sentences and was, by the Warden of that institution, delivered into the custody of an agent of the Department of Justice of the United States by whom Jones was removed to New Orleans, Louisiana, and placed in a United States Jail at that place;

"Shortly thereafter, Jones was removed from the United States Jail at New Orleans, Louisiana, by an agent of the Department of Justice of the United States, by whom he was transported to Shreveport and there placed in confinement in a penal institution of the United States;

"Jones remained in the Shreveport institution only a short time and then was taken from there by an agent of the Department of Justice of the United States to the United States Penitentiary, at Leavenworth, Kansas, and delivered into the custody of the Warden at that penitentiary;

"Sometime after Jones' incarceration in the United States Penitentiary, at Leavenworth, Kansas, a detainer was filed with the Warden of that institution by the State of Louisiana;

"Under date of August 8, 1941, the Governor of Louisiana executed his executive request directed to the Governor of Kansas for the extradition of said Lester Jones, in which the Governor of Louisiana certified that Lester Jones stands charged with the crime of Robbery in Caddo Parish, in the State of Louisiana and further certifying that Lester Jones has fled from justice and has taken refuge in the State of Kansas;

"Under date of August 28, 1941, an Executive Warrant was issued by the Governor of Kansas, ordering the arrest of said Lester Jones and the delivery of him to O. D. Treadway, the agent of the State of Louisiana;

"The executive warrant of Payne Ratner, Governor of the State of Kansas, ordering the arrest and delivery of Lester Jones as aforesaid, after a recitation of the demand of the Governor of Louisiana, contains the following paragraphs:

"'And whereas, the said Governor of Louisiana aforesaid has produced a copy of a commitment, committing the said Lester Jones, alias Joe Payne, to the Penitentiary of the State of Louisiana to serve sentence for the crime of Robbery; also reprieve was granted and order revoking said reprieve was produced in and by which it appears that the said Lester Jones, alias Joe Payne, stands committed to the Penitentiary of the State of Louisiana and owing service to the State of Louisiana;

"'And whereas, It has been made to appear to me that the said Lester Jones, alias Joe Payne, is within the State of Kansas, fugitive from the justice of the said State of Louisiana;

"'And whereas, The said papers are certified by the Governor of said State of Louisiana, as authentic, and the said demand and copy of said commitment, parole and order revoking said parole are now on file in the Executive Office of the State of Kansas;' following which was the order of arrest and delivery of Lester Jones to O. D. Treadway, the agent of the State of Louisiana, duly commissioned by the Governor of Louisiana to receive said fugitive;

"By order of court, all of the documents of every kind which accompanied the requisition of the Governor of Louisiana and which were delivered to the Governor of the State of Kansas by O. D. Treadway, the special agent of the State of Louisiana, were, by said O. D. Treadway, brought into

court for inspection by the court and among said documents there was no copy, certified or otherwise, of any reprieve or parole or other act of clemency granted to said Lester Jones by the Governor of the State of Louisiana, nor was there any copy, certified or otherwise, of any order revoking any reprieve, parole or other act of clemency;

"Among said documents was an authenticated copy of a request made by the Attorney General of the State of Louisiana to the Governor of said state that a requisition be issued for the return of said Lester Jones and the only reference therein contained to a reprieve is contained in the following two paragraphs, to-wit:

"'that said Lester Jones was on March 10, 1938, in the cause "United States vs. Lester Jones, No. 8017 of the docket of the District Court of the United States of America for the Western District of Louisiana, Shreveport Division, sentenced to serve five years to run concurrently with the sentence to be served in the Louisiana State Penitentiary, at Angola, Louisiana:" that, on April 28th 1939, under and by authority of a reprieve granted by Governor R. W. Leche, the said Lester Jones was surrendered to the Federal Authorities to serve the Federal sentence hereinabove referred to ***."'

"Introducd in evidence was an affidavit of D. D. Bazer, Warden, Louisiana State Penitentiary, sworn to on July 23, 1941, which is certified to as authentic by the Governor of Louisiana which contains the following statements, to-wit:

"'That prisoner number 28853-Lester Jones, was duly adjudged guilty in the first Judicial District Court for the Parish of Caddo, State of Louisiana, on March 10, 1938, of the crime of Robbery, on two counts, a felony, and was sentenced to serve 10 years on each count, concurrently, in the Louisiana State Penitentiary; that he was actually incarcerated therein on March 12, 1938:

"'That on April 28, 1939, the said Lester Jones was released to Federal authorities to serve sentence imposed in the United States District Court for the Western District of "Louisiana," by virtue of an executive reprieve by the Governor of Louisiana, dated April 25,

...