Lime v. Blagg

• Decision Date: 05 September 1939
• Docket Number: 36729
• Citation: 131 S.W.2d 583,345 Mo. 1
• Parties: Ex Parte Ermal Jay Lime, Petitioner, v. Edison Blagg, Acting Warden
• Court: Missouri Supreme Court

131 S.W.2d 583

345 Mo. 1

Ex Parte Ermal Jay Lime, Petitioner, v. Edison Blagg, Acting Warden

No. 36729

Supreme Court of Missouri

September 5, 1939

Prisoner ordered remanded to custody.

Irwin Bushman & Buchanan for petitioner.

W O. Sawyers, Assistant Attorney General, for respondent.

OPINION

Ellison J.

Habeas Corpus for the discharge of Ermal Jay Lime, a prisoner now confined in the State penitentiary under a warrant of commitment issued out of the Circuit Court of Jackson County. In February, 1932, the prisoner pleaded guilty in that court to the crime of bombing (Secs. 4424 and 4425, R. S. 1929, Mo. Stat. Ann., p. 3043) and was sentenced to life imprisonment in the penitentiary. After serving nearly six years of his sentence he was granted a "sick parole" by Governor Stark in January, 1938, because the penitentiary physician had certified that the prisoner was afflicted with pulmonary tuberculosis and in need of outside treatment. About two weeks later, without notice or hearing, the Governor revoked the parole following a recommendation by the Board of Probation and Parole. This recommendation was made because the Board had come to the belief that the prisoner was not afflicted with tuberculosis. There had been no violation of any of the other conditions of the parole.

The Attorney General contends the parole was a mere reprieve or suspended sentence which could be revoked by the Governor at pleasure in the exercise of his constitutional powers, without notice or hearing and free from interference on the part of the legislative and Judicial Departments of the State. The prisoner contends the original order was a commutation of the sentence or a conditional pardon, which could not be revoked without notice to the prisoner and a hearing before an authorized tribunal. On this theory he maintains the revocation was void and denied him due process of law, citing: Ex parte Reno, 66 Mo. 266, 269, 27 Am. Rep. 337; Ex parte Strauss, 320 Mo. 349, 352, 7 S.W.2d 1000; Ex parte Rice, 72 Tex. Crim. Rep. 587, 162 S.W. 891.

The records brought up are conflicting, though all of them are certified by the Secretary of State. The sick parole order, as shown in the return of the Warden of the penitentiary to our writ, is dated January 16, 1938; as shown in the prisoner's denial of the return it is dated January 10, 1938. The record as a whole indicates the latter date is correct. Otherwise both versions of the parole order are the same. It was as follows:

"TO THE SECRETARY OF STATE:

"Sir:

"In the matter of suspension of sentence of Ermal Jay Lime, #40630, who, on the 13th day of February, 1932, in the Circuit Court of Jackson County, plead guilty to the crime of Bombing, and whose punishment was assessed at Life in the State Penitentiary.

"Now, therefore, I, Lloyd C. Stark, Governor of the State of Missouri, by virtue of authority vested in me by law and for good and sufficient reasons appearing, do for the purpose of granting to the said Ermal Jay Lime, #40630, a sick parole, hereby suspend the sentence of the said Ermal Jay Lime, parole and release him from such imprisonment, to the end that he may receive proper treatment for tuberculosis, as shown by the certificate of the Prison Physician, heretofore laid before me. Upon the express condition, however, that the said Ermal Jay Lime shall faithfully demean himself as a citizen of the State of Missouri, and abide by the Laws of the State, and further, that he shall go immediately upon his release, to Mrs. J. S. Lime, Kansas City, Missouri, who has promised and agreed to receive him and act as his sponsor, and to make reports to the Governor in regard to his behavior, physical condition and compliance with the conditions of his parole.

"Upon the arrival of Ermal Jay Lime at Kansas City, Missouri, both Mrs. J. S. Lime and Ermal Jay Lime will advise the Governor of that fact; then every thirty days to the Governor by letter, his whereabouts, physical condition and his compliance with the provisions of this parole. Upon the restoration of the said Ermal Jay Lime to health, prior to said period, he may be arrested and returned to the prison and made to serve out the remainder of his sentence.

"Respectfully,

"(Signed) Lloyd C. Stark

"GOVERNOR

"This the 16th day of January, 1938."

The revocation of the sick parole order was dated January 26, 1938. The copy thereof attached to the Warden's return is wholly different from that attached to the prisoner's petition for our writ. The former by way of recital of past events, states the Governor "granted a commutation of sentence for the purpose of parole" which imposed conditions binding up to January 10, 1943. Later the revocation order refers to the parole order as a "Commutation Parole" and a "Parole Commutation." This revocation order is a mimeographed form used during the tenure of a former Governor, with words scratched out and filled in on a typewriter. It indicates the original was signed both by the Governor and the Secretary of State.

The revocation order attached to the prisoner's petition for the writ states that on January 10, 1938, the Governor granted "a conditional parole" to the prisoner, which contained certain quoted language reciting that he did "for the purpose of parole hereby commute the sentence of the said Ermal Jay Lime, to a term ending the 10th day of January, 1938;" and binding him to show compliance with the conditions of the parole by letter every 30 days up to and including January 10, 1943. This latter revocation order is all typewritten and shows the original signed by the Governor and addressed to the Secretary of State.

Neither of these revocation orders recites that the original parole order was a sick parole releasing the prisoner from prison confinement for the purpose of receiving treatment for tuberculosis, though they do state the breach thereof arose from the fact that the Board of Probation and Parole had concluded the prisoner was not afflicted with tuberculosis. Both copies show the parole order commuted the sentence of the prisoner, effective on the date of issuance, January, 10 1938, and placed him under parole for five years ending January 10, 1943. But with the original sick parole order before us, brought up by both parties, we cannot accept as true recitals in the two copies of the revocation order purporting to contradict its terms. Its effect must be taken as declared on its face -- that it was a sick parole suspending the sentence of the prisoner in order that he might receive outside treatment for tuberculosis. It was more nearly like a reprieve than a pardon or...