Noble v. Siwicki

• Court: Rhode Island Supreme Court
• Writing for the Court: William J. Sheehan, Norman J. Bolotow, Providence, as amicus curiae; ROBERTS; PAOLINO
• Citation: Noble v. Siwicki, 197 A.2d 298, 97 R.I. 288 (R.I. 1964)
• Decision Date: 11 February 1964
• Docket Number: No. 1588,1588
• Parties: Jerome NOBLE v. Walter SIWICKI, Administrator of the Department of Probation. M. P.

Page 298

197 A.2d 298

97 R.I. 288

Jerome NOBLE v. Walter SIWICKI, Administrator of the Department of Probation.

M. P. No. 1588.

Supreme Court of Rhode Island.

Feb. 11, 1964.

Abedon, Michaelson & Stanzler, Milton Stanzler, Richard A. Skolnik, Providence, for petitioner.

William J. Sheehan, Norman J. Bolotow, Providence, as amicus curiae, J. Joseph Nugent, Atty. Gen., Carmine A. Rao, Asst. Atty. Gen., for respondent.

ROBERTS, Justice.

This petition for a writ of habeas corpus was brought by the petitioner to obtain his discharge from the allegedly unlawful custody of the respondent administrator of the department of probation. The petitioner has been in the custody of the respondent pursuant to an order of a justice of the family court issued on February 7, 1963 placing him on probation for a period of one year after having been adjudged in contempt of that court.

It appears from the record that petitioner here testified in a divorce proceeding entitled Jacqueline Vieira v. Joseph Vieira, Divorce No. 75824. In that proceeding the respondent husband's cross petition for a bed and board divorce was granted, but custody of the minor children of the couple was given to the mother. Sometime thereafter the respondent husband petitioned the court for a change in the custody of the children and summoned petitioner here as a witness. At a hearing on the motion petitioner testified, and when this hearing concluded on November 7, 1962 the court ordered him to appear at a later date to show cause why he should not be prosecuted for perjury. The show cause order was heard on February 7, 1963.

At that hearing the trial justice discussed at some length prior testimony of petitioner concerning both his relationship with Mrs. Vieira and his registering as a guest at a cabin in New Hampshire, and also his failure to comply with the order that he terminate his relationship with Mrs. Vieira. In substance, the court charged petitioner with having testified during the hearing that he had never signed the guest register at the cabin in New Hampshire and that he had denied being at the cabin in the company of Mrs. Vieira and causing a change to be made in the register book. The judge then went on to say: 'Subsequently, there were depositions filed in the case. Depositions were to the effect that the change was made although the owner could not state specifically that the change was made by Mrs. Vieira or yourself, the owner did say that you and Mrs. Vieira came back to the cabins where on the date you specifically denied that you were there.'

The trial justice stated that while he had given custody of the children to Mrs. Vieira, he had not been satisfied concerning her activities and recalled that at that time he had issued a warning that if she engaged in such activities any further, he would take the children away from her. He also referred to his directing petitioner to keep away from Mrs. Vieira and said: 'If you come in here again and I hear of you being in her company, I will see to it that you are sent down to jail and you will stay there. Now you have had all the chances that you're going to have, and this is the last one. I am not going to cite you for perjury, but I am going to cite you for contempt of this Court. The record may show that I find you in contempt, and for the contempt, I am going to place you on probation for a period of one year. The terms of the probation are that you are to stay away from Mrs. Vieira, period. You understand?' It does not appear from the record that petitioner had notice concerning the depositions which were apparently made by an innkeeper in New Hampshire concerning the registration of Mrs. Vieira and petitioner in a cabin operated by him.

There appears to be no dispute that in this state habeas corpus lies to procure the discharge of a person from the unlawful custody of a probation officer. We are of the opinion that the provisions of our statute, G.L.1956, § 10-9-1, are of sufficient latitude to enable a person restrained by reason of commitment to the custody of a probation officer to prosecute a writ of habeas corpus to terminate that restraint if unlawfully imposed. The pertinent portion thereof provides that every person imprisoned in a correctional institution 'or otherwise restrained of his liberty by any officer or other person' may prosecute a writ of habeas corpus to obtain relief from such restraint if unlawfully imposed. The view which we take of this statute appears to be consistent with the basic concept set out in Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285. In passing upon the question of whether habeas corpus properly could be invoked to terminate the custody of a petitioner by a parole board, the court said 371 U.S. at page 240, 83 S.Ct. at page 376, 9 L.Ed.2d 285: 'History, usage, and precedent can leave no doubt that, besides physical...