Overlade v. Wells

Decision Date01 July 1955
Docket NumberNo. 29201,29201
Citation234 Ind. 436,127 N.E.2d 686
PartiesJ. Ellis OVERLADE, as Warden of the Indiana State Prison, Appellant, v. William WELLS, Appellee.
CourtIndiana Supreme Court

Edwin K. Steers, Atty. Gen., Frank E. Spencer, Deputy Atty. Gen., for appellant.

James C. Cooper, Public Defender, Rushville, Perry W. Cross, Deputy Public Defender, Muncie, for appellee.

BOBBITT, Judge.

This appeal is from a judgment granting a writ of habeas corpus and releasing appellee from custody of the Warden of the Indiana State Prison.

Appellant assigns as error the overruling of his motion for a new trial.

The evidence was by stipulation of the parties and a summary thereof is necessary to a full understanding of the questions presented.

Appellee was sentenced on January 12, 1940, by the Gibson Circuit Court to serve a term of 2 to 14 years in the Indiana State Prison for the crime of forgery. He was released on parole on January 12, 1943. On May 29, 1946 appellee was arrested in St. Louis, Missouri, where he was on parole under the supervision of the Board of Probation and Parole of the Supervisor of Missouri by request of the Supervisor of Paroles of the Department of Public Welfare of the State of Indiana. On June 1, 1946, the Missouri authorities notified the Indiana Supervisor of Paroles of appellee's arrest. Subsequently, on June 18, 1946, a parole violation warrant was executed by the Warden of the Indiana State Prison and forwarded to the Director of Probation and Parole in Jefferson City, Missouri. In a letter covering the transmittal of the warrant the Supervisor of Paroles of Indiana said:

'Attached is Parole Violation Warrant #382 to be filed against Wells as our detainer. We urge that he be prosecuted in your state; however, if he is not convicted, please hold him for us pending a decision of the Board of Trustees of the Indiana State Prison in his case.'

On June 21, 1946, the Board of Parole for the Indiana State Prison, at its regular monthly meeting, declared appellee, Wells, to be delinquent. On October 7, 1946, appellee was sentenced for a term of one year in the City Workhouse in St. Louis, Missouri, and at the end of this term, on October 7, 1947, he was returned and imprisoned in the Indiana State Prison. He was again released on parole on June 16, 1950.

On or about March 1, 1951, appellee was arrested in Mt. Carmel, Illinois, on a charge of forgery. He waived preliminary hearing and informed the Justice that he was on parole in Indiana. On the next day after the preliminary hearing the Sheriff of Wabash County, Illinois, called the Indiana State Prison and informed 'the person on the telephone' that the Wabash County State's Attorney had told him to inform the Indiana authorities that Illinois would not prosecute appellee if Indiana would take him back for parole violation. This statement was later repeated to the Indiana District Parole Officer having charge of appellee, in a telephone conversation with the Sheriff. The parole officer replied: 'We'd rather you would prosecute Wells in Illinois and we will send you our detainer. You can send us a report of the sentence.' Appellee was, upon conviction, sentenced to a term of one to fourteen years in the Southern Illinois Penitentiary.

Also, on March 2, 1951, the Acting Director of the Division of Corrections of Indiana wrote the Sheriff of Wabash County, at Mt. Carmel, Illinois, advising him that the Division had been informed by the District Parole Officer of appellee's arrest in Illinois and requesting a report covering the circumstances of the case, and asking that the Division be kept advised as to the outcome. The letter also stated:

'We are attaching our parole violation warrant #961, which we would appreciate your filing as a detainer. We do not want this to interfere with his prosecution there. We are also attaching triplicate copies of our waiver of extradition, which we would appreciate your attempting to get him to sign. If he will sign these, please return two copies to this office properly executed.

'Please acknowledge receipt of the warrant and, in the event he is convicted, advise us the institution to which he is sent and see that our warrant follows him.'

The Department of Public Welfare was subsequently notified that appellee had been delivered to the Southern Illinois Penitentiary on April 6, 1951, and on April 12, 1951, the Acting Director, Division of Corrections of the Department of Public Welfare of Indiana wrote the Warden of the Illinois Penitentiary as follows:

'We are attaching our parole violation warrant #961, which we would appreciate your filing as a detainer against him. Please acknowledge receipt of this warrant and mark your records to notify us approximately 60 days prior to his eligible release date so that a decision can be made relative to his return to our institution.'

After the issuance of a warrant by the Warden of the Indiana State Prison on March 2, 1951, the Board of Paroles of such prison, at its regular monthly meeting, on March 16, 1951, again declared appellee to be delinquent.

The record further discloses that upon his release from the City Workhouse in Missouri appellee was arrested and returned to the Indiana State Prison on October 7, 1947, at which time the termination date of his unexpired maximum term imposed by the Gibson Circuit Court was extended for a period of one year, three months and sixteen days from and after January 12, 1954, because the running of his sentence was tolled as provided by the Acts of 1897, ch. 143, § 8, p. 219, being § 13-251, Burns' 1942 Replacement.

After appellee's release from the Illinois State Penitentiary he was arrested and returned to the Indiana State Prison on October 22, 1953, at which time the termination date of the unexpired maximum term of his sentence was extended for two years, seven months and six days from and after April 28, 1955, because of his second parole violation, thus extending petitioner's-appellee's term of service in the Indiana State Prison to and including December 4, 1957, as provided by § 13-251, supra.

Two questions are presented for our consideration.

First: Did the Supervisor of Paroles and the Acting Director of the Division of Corrections of the Welfare Department of Indiana by their acts and failure to act, as hereinabove set out in the summary of the evidence, permanently waive any further right of the State of Indiana to recommit appellee to the Indiana State Prison for violation of his parole?

A similar question was before this court in Gilchrist v. Overlade, 1954, 233 Ind. 569, 122 N.E.2d 93. There the appellant, Gilchrist, while on parole from the Indiana State Prison was arrested and convicted by the Federal District Court for violation of the Dyer Act. Upon conviction the Chief Probation Officer of the District Court wrote the Warden of the State Prison to inquire whether the Warden would accept the return of Gilchrist as a parole violator and permit him to serve his Federal term concurrently with the remainder of the sentence he would be required to serve by reason of the violation of his parole. The parole officer was advised by the Indiana authorities that they had no desire to proceed against Gilchrist as a parole violator so long as the Federal Government had actual custody and jurisdiction of the prisoner.

In the Gilchrist case, at page 575 of 233 Ind, and at page 96 of 122 N.E.2d we said:

'The Governor of Indiana may, in the exercise of his power to grant pardons and reprieves, surrender a prisoner to another state or to the Federal government to pay the penalty for a crime committed in that State or against the Federal government, in a manner which would effectively waive any right to future custody or jurisdiction of such prisoner. Such action would, in effect, be a commutation of sentence amounting to the remaining time which the prisoner could be required to serve under his commitment in Indiana.

'The Parole Board in Indiana has no power to pardon or to commute the sentence of any prisoner.'

If the Parole Board has no such power it follows that, for the same reasons, the Department of Public Welfare, nor any of its employees, has the power to grant pardons or commute the sentence of any prisoner.

The surrender of appellee to the authorities of Missouri and Illinois upon the criminal charges there pending against him did not constitute a waiver of the right to recommit him to the Indiana State Prison to serve out the time imposed by the statute 1 for the violation of the terms his parole. Gilchrist v. Overlade, 1954, 233 Ind. 569, 122 N.E.2d 93, 98, supra.

If the Indiana authorities did not desire to retain their custody of appellee and were willing to suspend it temporarily while he served the sentences which he had these rules or any order of court, a received in Missouri and Illinois, it was a right which resided wholly in them, and was not one personal to appellee which he could enforce or complain because it was not exercised. Gilchrist v. Overlade, supra, and cases there cited. See also: State ex rel. Smith v. Dowd, Ind.Sup.1955, 124 N.E.2d 208.

Second: Could appellee be held in the Indiana State Prison for a period equal to the unexpired maximum term of his sentence remaining at the time his delinquencies were declared, i. e., until December 4, 1957, and longer than January 12, 1954, at which time his maximum term would have been served except for his delinquencies while on parole?

Acts 1897, ch. 143, § 8, p. 219, being § 13-251, Burn's 1942 Replacement, supra, provides:

'At the next meeting of the board of commissioners of paroled prisoners, held at such prison, after the issuing of a warrant for the retaking of any paroled prisoner, said board shall be notified thereof. If said prisoner shall have then been returned to said prison, he shall be given an opportunity to appear before said board, and the said board may, after such opportunity has been given, or in...

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23 cases
  • Bleeke v. Lemmon
    • United States
    • Indiana Supreme Court
    • April 16, 2014
    ...court.” Id. So “[w]hile a parole is an amelioration of punishment, it is, in legal effect, still imprisonment.” Overlade v. Wells, 234 Ind. 436, 446, 127 N.E.2d 686, 691 (1955) (internal citation omitted). “While on parole the prisoner remains in the legal custody of the parole agent and wa......
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    ...Peoples Broadcasting Corp. (1989), Ind., 547 N.E.2d 235, 237 (citing Clipp v. Weaver (1983), Ind., 451 N.E.2d 1092; Overlade v. Wells (1955), 234 Ind. 436, 127 N.E.2d 686). Since words that have one meaning in a particular context frequently have a different meaning in another context, it i......
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    ...parte Forbes, 108 Cal.App. 683, 292 P. 142 (1930); Ex parte Prout, 12 Idaho 494, 86 P. 275, L.R.A.,N.S., 1064 (1960); Overlade v. Wells, 234 Ind. 436, 127 N.E.2d 686 (1955); Bates v. Hudspeth, 171 Kan. 219, 230 P.2d 1006 (1951); see Ginivalli v. Frisbie, 336 Mich. 101, 57 N.W.2d 457 (1953);......
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