Kirkpatrick v. Hollowell
| Decision Date | 14 December 1923 |
| Docket Number | No. 35935.,35935. |
| Citation | 197 Iowa 927,196 N.W. 91 |
| Parties | KIRKPATRICK v. HOLLOWELL. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Lee County; W. S. Hamilton, Judge.
Action in habeas corpus. The trial court discharged the plaintiff, and the defendant appeals. The facts appear in the opinion. Reversed and remanded.Ben J. Gibson, Atty. Gen., Maxwell A. O'Brien, Asst. Atty. Gen., G. L. Norman, Co. Atty., of Keokuk, and R. N. Johnson, Deputy Co. Atty., and C. C. Martin, Asst. Co. Atty., both of Ft. Madison, for appellant.
Herminghausen & Herminghausen, of Ft. Madison, for appellee.
Appellant is the warden of the state penitentiary at Ft. Madison.
Appellee was convicted of a felony in the district court of Wapello county, and was sentenced October 16, 1916, under the indeterminate sentence statute for the maximum term of five years. He was confined in the reformatory at Anamosa under said sentence on October 18, 1916, and continued to serve his sentence by confinement in said reformatory until December 30, 1918. On the last named date he was duly paroled by the board of parole.
On July 7, 1919, while so on parole, appellee was convicted of the crime of grand larceny in Linn county, and on said date was sentenced to the state penitentiary at Ft. Madison under the indeterminate sentence statute for the maximum term of five years. He began service under the latter sentence on July 9, 1919. He earned “good time” under Code, § 5703, and his term of service under the Linn county sentence expired December 7, 1922. On October 14, 1922, the board of parole revoked the parole that had been granted to appellee under the sentence in Wapello county, and issued a warrant for his return to the reformatory. Pursuant to said warrant and order of arrest, appellee was arrested on December 7, 1922, and under order of the board of control was directed to be confined in the state penitentiary at Ft. Madison instead of in the reformatory. This action in habeas corpus was commenced on the 12th of July, 1923.
The answer to appellee's petition sets out the foregoing facts, and there is attached thereto the copies of the written instruments referred to in the answer. Appellee demurred to the said answer, and the demurrer was sustained.
[1] I. It will be observed from the foregoing statement of facts that the parole issued to appellee was not revoked by the board of parole until after the term for which he was originally sentenced in Wapello county had fully expired. It is the contention of appellee that under such circumstances the board of parole had no power or authority whatever to revoke the parole that had been granted to appellee and to order his arrest and reincarceration.
The precise question so presented has never been before this court. The statute creating the board of parole of this state provides (Code Supplement 1913, § 5718a13) that with certain exceptions “the court imposing a sentence of confinement in the penitentiary shall not fix the limit or duration of the same, but the term of such imprisonment shall not exceed the maximum term provided by law for the crime of which the prisoner was convicted.” Under this statute appellee was sentenced for the offense of grand larceny for the maximum term of five years.
Code Supplement 1913, § 5718a18, provides:
“The board of parole shall have power to establish rules and regulations under which it may allow prisoners within the penitentiaries other than prisoners serving life terms to go upon parole outside of the penitentiary buildings, inclosures and appurtenances, but to remain while on parole in the legal custody of the wardens of the penitentiaries, and under the control of the said board of parole, and subject, at any time, to be taken back and confined within the penitentiary.”
Said section also provides:
“The time when a prisoner is upon parole or absent from the penitentiary shall not be held to apply upon his sentence if he shall violate the terms of his parole.”
Under these statutes the board of parole entered into a “parole agreement,” in writing, with the appellee, on or about December 30, 1918. By the terms of this agreement appellee was permitted to go outside the reformatory, in which he was confined, to obtain employment elsewhere, and he agreed to comply with certain requirements of the board of parole with respect to his conduct, and to report to said board. The said parole agreement also provided:
“(8) He (appellee) shall remain in the legal custody of the warden of the reformatory, and under the control of the board of parole.
(9) He shall be liable to be retaken and again confined within the inclosure of the said reformatory for any reason that shall be satisfactory to the board of parole, and at its sole discretion, until he receives his final discharge.”
Had appellee remained in the reformatory to which he was originally committed, without being paroled, his sentence would have fully expired before the order of revocation of his parole was entered by the board of parole. It is his contention that when he was released from the reformatory by the board of parole that the authority of said board to revoke the parole was limited in any event to the maximum period of time for which he was sentenced, and that after the expiration of said time the board of parole had no authority whatever over him, and could not revoke, his parole and order his arrest and further confinement in the penal institution.
The theory and purpose of the provisions of the statute creating the board of parole are to provide a means by which criminals may be temporarily released from confinement in penal institutions. Such laws have been adopted by Congress and by many of the states. One purpose of such statutes is to give the truly reformed criminal an opportunity to re-establish himself as a lawabiding citizen and as a useful member of society and to permit him to have the opportunity so to do. All boards of parole provide by rules and regulations for the conduct of prisoners so on parole, and for their general oversight during the term of parole. Under our statute the paroled prisoner is permitted to go outside of the penal institution under the terms and conditions imposed by the board of parole, and “subject at any time to be taken back and confined within the penitentiary.” In a sense, it is quite proper to say that during the period of parole the sentence of confinement in the penitentiary is suspended, and by the express terms of the statute it is provided that--
“The time when a prisoner is upon parole or absent from the penitentiary shall not be held to apply upon his sentence if he shall violate the terms of his parole.”
In the instant case appellee did not serve the full term of his sentence because of the fact that he was paroled. He violated the terms of the parole; therefore, under the statute, the time he was on parole should not be held to apply upon his sentence. It therefore was clearly within the statutory province and power of the board of parole to revoke the parole that had been granted to appellee, and to order his arrest and reincarceration, and he could be confined in the penitentiary for the full term of his sentence, less good time, if any, which might be allowed under the statute, but without receiving any credit on said sentence for the period of time he had been out on parole.
Our statute provides that a prisoner who is paroled by the board of parole is “subject, at any time, to be taken back and confined within the penitentiary.” What is the meaning of the statutory provision that a prisoner “while on parole” is “subject, at any time, to be taken back and confined in the penitentiary?”
Section 5718a20 provides that it shall be the duty of the board of parole to keep in communication, so far as possible, with all prisoners who are on parole, and that, after a prisoner has served not less than twelve months of his parole acceptably, and the board of parole are satisfied that he is reliable and trustworthy, and will continue to be a law-abiding citizen, and that his final release is not incompatible with the welfare of society, it may recommend to the Governor the discharge of said...
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...supra, does not apply. The case of Hunley v. Hollowell, supra, followed an earlier decision of the Iowa court, Kirkpatrick v. Hollowell, 197 Iowa 927, 933, 196 N.W. 91, 198 N.W. 81, which adopted a line of reasoning similar to that in Zerbst v. Kidwell, supra, and in which, also, the parole......