Kozlowsky v. Judge

• Decision Date: 27 May 1921
• Parties: KOZLOWSKY v. JUDGE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

238 Mass. 532

131 N.E. 188

KOZLOWSKY

v.JUDGE.

Supreme Judicial Court of Massachusetts, Middlesex.

May 27, 1921.

Report from Supreme Judicial Court; Middlesex County.

Habeas corpus by John F. Kozlowsky against Charles T. Judge Acting Superintendent of the Massachusetts Reformatory. A single justice remanded the petitioner and reported the case for determination by the Supreme Judicial Court. Order affirmed.

The petitioner was sentenced to imprisonment in the Massachusetts Reformatory on an indeterminate sentence, but subsequently removed to the house of correction for Middlesex county on a warrant of the commissioner of correction, and thereafter permitted to go at liberty by the board of parole. The permit was subsequently revoked, and the petitioner arrested and imprisoned in the reformatory. He alleged that such arrest and imprisonment was without right, justification, or authority.Clarence W. Rowley, of Boston, for petitioner.

J. Weston Allen, Atty. Gen., and Maynard Teall, Asst. Atty. Gen., for respondent.

JENNEY, J.

The petitioner, John F. Kozlowsky, who pleaded guilty to an indictment for the larceny of property of the value of more than $100, was sentenced to imprisonment on an indeterminate sentence in the Massachusetts Reformatory. R. L. c. 220, § 28; St. 1910, c. 356, § 1; Commonwealth v. Brown, 167 Mass. 144, 45 N. E. 1;Miller v. State, 149 Ind. 607, 49 N. E. 894,40 L. R. A. 109;Adams v. Barr, 154 Iowa, 83, 134 N. W. 564;Woods v. State, 130 Tenn. 100, 169 S. W. 558, L. R. A. 1915F, 531. From June 27, 1919, to December 16, 1919, he was imprisoned in the reformatory. On the latter day the commissioner of correction for the commonwealth issued a warrant purporting to order the petitioner's removal from the reformatory to the house of correction in Cambridge to be kept there until the expiration of his sentence or until otherwise discharged. R. L. c. 225, § 83; St. 1916, c. 241, § 1; St. 1919, c. 350, §§ 82-84; G. L. c. 127, § 149; Kenney v. State, 5 R. I. 385;People v. Rawson (N. Y.) 61 Barb. 619. The petitioner was then transferred to said house of correction and was there imprisoned until July 24, 1920, when he was released by the board of parole. The commissioner of correction issued to him a permit to be at liberty ‘for the unexpired term of his sentence unless before its expiration this [the] permit shall be revoked or become void.’ R. L. c. 225, § 117; St. 1916, c. 241, § 1; St. 1917, c. 245; St. 1919, c. 350, §§ 82-85; G. L. c. 127, § 128; Fuller v. State, 122 Ala. 32, 26 South. 146,45 L. R. A. 502, 82 Am. St. Rep. 1;People v. Joyce, 246 Ill. 124, 92 N. E. 607,20 Ann. Cas. 472;People v. Roth, 249 Ill. 532, 94 N. E. 953, Ann. Cas. 1912A, 100;State v. Duff, 144 Iowa, 142, 122 N. W. 829,24 L. R. A. (N. S.) 625, 138 Am. St. Rep. 269. See 20 Ann. Cas. 479, note; L. R. A. 1915F, 532, note.

On January 26, 1921, the board of parole by vote revoked the petitioner's permit to be at liberty. G. L. c. 127, § 148. On the second day thereafter the deputy commissioner of correction issued a warrant which purported to authorize the petitioner's apprehension and his conveyance to the reformatory to be detained therein according to the term of his original sentence; and he is now imprisoned in that institution. G. L. c. 27, §§ 1, 2, and chapter 127, § 149.

[1] The petitioner contends that his detention in the Massachusetts Reformatory is unauthorized, and the present proceeding is a petition for his discharge by means of a writ of habeas corpus. He also contends that his removal from the reformatory to the house of correction was an unlawful exercise of power because of G. L. c. 279, § 23, which provides that--

‘No sentence of a male convict to imprisonment or confinement for more than two and one half years shall be executed in any jail or house of correction. This section shall apply only to sentences hereafter imposed.’

But this statute was not in force when the petitioner was sentenced and hence has no application to this case. St. 1918, c. 257, §§ 464, 478; St. 1919, c. 5; St. 1920, c. 2.

It is also argued that the statute authorizing removals by the commissioner of correction from the reformatory to the house of correction is unconstitutional because such removal is an exercise by the commissioner of judicial powers in that it involves the alteration of a precise sentence imposed by the court by the commitment of the petitioner to a different institution from that to which he was originally sentenced, and, in effect, that imprisonment in the house of correction was as a matter of law a more severe punishment than that authorized by the sentence of the court. As to this, see Conlon's Case, 148 Mass. 168, 19 N. E. 164;O'Brien v. Barr, 83 Iowa, 51, 49 N. W. 68. Even if it be assumed, but not decided or intimated, that the statutes cited, authorizing in express terms the removal, are not to be construed as making all sentences subject to their provisions; and if it be assumed that the place of confinement was an essential and unalterable term of the sentence and hence could not be changed by either the court or commissioner and that the considered provisions therefore are unconstitutional, it does not follow that the petitioner is entitled to a release. He is now in the place to which he was originally sentenced; and his sentence has not expired. If the petitioner's contention is sound and there was no right to remove him from the reformatory, he is there now under his original sentence and ought not to be released. Conlon's Case, supra. If the petitioner was wrongfully removed to and confined in the house of correction, and rightfully could be detained in the reformatory, he would not be entitled to a discharge, but should be remanded to the custody of the superintendent of the reformatory. G. L. c. 248, § 22; Ex parte McGuire, 135 Cal. 339, 67 Pac. 327,87 Am. St. Rep. 105; Ex parte Ricord, 11 Nev. 287; Ex parte Taylor, 5 Cow. 39;In re Harris, 68 Vt. 243, 35 Atl. 55. See In re Bonner, 151 U. S. 242, 262, 14 Sup. Ct. 323, 38 L. Ed. 149.

The petitioner, while he does not complain because of his release on parole, further contends (1) that no valid order was made by the board of parole revoking his permit to be at liberty from the house of correction and hence he is now entitled to be free; (2) that the commissioner of correction could not issue a lawful warrant for his arrest and recommittal for the reason just stated; and (3) that no proper order was made for his return because he could only be remanded to the prison from which he was released.

Although the vote of the board was that the ‘permit to be at liberty from the Massachusetts Reformatory which was granted to John F. Kozlowsky, No. 21,863, be revoked,’ when in fact he had been released from the house of correction, no question of identity did or can arise. The essential part of the proceeding was the revocation of the parolment. The error cannot avail the petitioner as it affects no substantial right.

The report states that no evidence was offered tending to show that the petitioner had violated any of the rules or regulations of the reformatory, or of the house of correction, or of any terms or conditions return upon the writ recited that ‘prior rwturn upon the writ recited that ‘prior to revocation of said permit to be at liberty, the petitioner violated the conditions thereof, whereby said permit became void’ under G. L. c. 127, § 147. No answer was made to the return and the record nowhere states that the petitioner denied its truth in this respect. Under these circumstances the allegation of the return as to the violation of the conditions of the permit is conclusive. G. L. c. 248, § 15; Commissioner's Notes on Rev. Sts. (1835), pt. III, 220; Crowley v. Christensen, 137 U. S. 86, 94, 11 Sup. Ct. 13, 34 L. Ed. 620;Richards v. Collins, 45 N. J. Eq. 283.¹ Moreover, the statute also authorizes the revocation of the permit to be at liberty at any time prior to its expiration. All the provisionsof the statute in this respect must be read together. The violation of terms or conditions under...