Mahan v. Buchanan
| Decision Date | 19 July 1949 |
| Citation | 221 S.W.2d 945,310 Ky. 832 |
| Parties | MAHAN v. BUCHANAN. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Lyon County; Ira D. Smith, Judge.
Habeas corpus proceeding by Joseph Mahan against W. Jess Buchanan warden Kentucky State Penitentiary. From a judgment denying relief, petitioner appeals.
Affirmed.
T. E Sparks, Central City, for appellant.
A. E Funk, Atty. Gen., W. Owen Keller, Asst. Atty. Gen., for appellee.
Appellant petitioned for a writ of habeas corpus. After a hearing the Trial Judge denied the writ. This appeal is prosecuted from that order.
Petitioner Joseph Mahan, was convicted in the Todd Circuit Court of the crime of armed assault with intent to rob and given Life in the Penitentiary. He was committed to the State Penitentiary at Eddyville on the 18th day of December 1935, where he served continuously until the 20th day of December 1944, when he was granted a parole by the Department of Welfare. After receiving his parole he returned to Central City in Muhlenberg County, his native City and County, and made his home with his mother and sister. It appears that he was engaged in gainful occupation and had succeeded in rehabilitating himself. He was visited periodically by parole agents of the Department of Welfare. He made all reports as required of parolees until he was notified by the Department of Welfare that no further reports would be required of him.
In the latter part of 1947 he became involved in some sort of altercation, after which he and the other parties involved were indicted by the Grand Jury of the Muhlenberg Circuit Court. Two indictments were returned against Mahan. In one indictment he was charged with malicious shooting and wounding and in the other with carrying concealed a deadly weapon. He applied for and was released on bond. Parole agents of the Department of Welfare investigated this incident and made report to the Department. No alteration of Mahan's parole status was made. Apparently nothing was done about the indictments although they remained on the docket in Muhlenberg Circuit Court.
On October 20, 1948, the residence of Arthur Bobbitt, situated in Central City, was fired into by some unidentified person. Two warrants of arrest were procured against Joseph Mahan. He was immediately arrested and placed in Central City Jail where he remained a couple of days, after which he was removed to the County Jail in Greenville where he was held until October 28th when he was transferred to the Penitentiary at Eddyville on an executive warrant issued by the Department of Welfare.
At the January term 1949 of the Muhlenberg Circuit Court the Grand Jury returned two indictments against Mahan, one charging him with malicious shooting with intent to kill without wounding and the other charging him with carrying concealed a deadly weapon. Pursuant to order directing the Warden of the Eddyville Penitentiary to return Mahan for trial, he was returned and was presented for trial on all four of the charges, that is, the two earlier indictments in 1948, and the latter two. The commonwealth elected to try Mahan on the indictment charging malicious shooting with intent to kill without wounding. Upon trial the Jury returned a verdict of not guilty. The Commonwealth Attorney then moved the court to dismiss all other charges contained in the other three indictments and it was so ordered by the court.
It appears that while Mahan was in the Central City Jail he was visited by a parole agent for the Department of Welfare, who informed Mahan that an investigation of the charges against him was being made. Following investigation the parole agent made his report. This report contains numerous matters in addition to and other than those upon which the indictments rested.
Petitioner takes the position that because he had adequate defense to the charges made, and since he was tried and acquitted, the Welfare Department by its arbitrary action against him denied him due process of law.
Although admitting that the petitioner forfeited and lost his constitutional right to liberty and freedom upon his conviction in the Todd Circuit Court, it is insisted that the granting of a parole to him restored certain rights; that he thereby earned and regained his constitutional right to freedom and liberty; and that same could not be wrested from him by any executive, administrative, or legislative authority without due process of law. It is contended by appellant that by his certificate of parole he was granted and restored to the right of freedom and liberty as guaranteed to all citizens under the ...
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