Owen v. Smith

• Decision Date: 13 June 1911
• Docket Number: 17,113
• Citation: 131 N.W. 914,89 Neb. 596
• Parties: JOHN C. OWEN, APPELLANT, v. THOMAS W. SMITH, WARDEN, APPELLEE
• Court: Nebraska Supreme Court

131 N.W. 914

89 Neb. 596

JOHN C. OWEN, APPELLANT, v. THOMAS W. SMITH, WARDEN, APPELLEE

No. 17,113

Supreme Court of Nebraska

June 13, 1911

APPEAL from the district court for Lancaster county: ALBERT J CORNISH, JUDGE. Affirmed.

AFFIRMED.

Price & Abbott, for appellant.

Grant G. Martin, Attorney General, and George W. Ayres, contra.

OPINION

FAWCETT, J.

Appellant John C. Owen, filed in the district court for Lancaster county his petition for a writ of habeas corpus. The petition alleges that on May 1, 1909, appellant, after having been convicted of assault with intent to commit great bodily injury, was sentenced to a term of five years in the state penitentiary; that on May 4, 1909, he was delivered to the warden of said penitentiary; that on September 9, 1910, appellant received from Ashton C. Shallenberger, the then governor of Nebraska, a parole, a copy of which is attached to and made a part of appellant's petition; that on October 11, 1910, the said Ashton C. Shallenberger, who was then still governor, "did unlawfully, wrongfully and without authority, and without any complaint having been made charging your petitioner with the violation of any of the parole agreements, and without giving this petitioner a hearing, did revoke the said parole and order your petitioner to be returned to the state penitentiary of the state of Nebraska, from which he had been paroled as heretofore set out;" that on October 12, 1910, appellee "T. W. Smith, the warden of the Nebraska state penitentiary, to whom the executive order of October 11 was directed," caused appellant to be reconfined and imprisoned in said penitentiary, where, it is alleged, he "is now unlawfully, wrongfully and without authority so deprived of his liberty." Upon a hearing in the district court, the application for a writ of habeas corpus was denied, the action dismissed, and appellant remanded to the custody of the warden of the state penitentiary. From such judgment this appeal is prosecuted.

The only question to be considered is whether the governor after having granted a parole to a convict, may, without notice and hearing, revoke such parole and order the convict to be apprehended and reimprisoned for the remainder of his term of imprisonment. Appellant cites some authorities from other states which at first blush seem to sustain his contention but an examination of those cases discloses the fact that they are based upon statutes essentially different from ours. As opposed to the cases cited by appellant, the attorney general has cited authorities based upon statutes similar to ours, which amply sustain the action of the governor. We do not deem it necessary to consider any of these cases, for the reason that we think the judgment of the district court must be affirmed under the very...