People ex rel. Atkins v. Jennings

• Decision Date: 01 May 1928
• Citation: 161 N.E. 326,248 N.Y. 46
• Parties: PEOPLE ex rel. ATKINS v. JENNINGS, Warden.
• Court: New York Court of Appeals Court of Appeals

248 N.Y. 46

161 N.E. 326

PEOPLE ex rel. ATKINS

v.JENNINGS, Warden.

Court of Appeals of New York.

May 1, 1928.

Habeas corpus by the People, on the relation of Burd R. Atkins, against Edgar S. Jennings, as Warden of the State Prison at Auburn. From an order of the Appellate Division, Fourth Department (222 App. Div. 97, 225 N. Y. S. 72), reversing a final order of Special Term, which dismissed the writ, and sustaining the writ and dismissing relator from custody, the Warden appeals.

Affirmed.

Crame, J., dissenting.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Albert Ottinger, Atty. Gen. (Almon W. Burrell, of Albany, of counsel), for appellant.

Burd R. Atkins, in pro. per.

POUND, J.

On the 15th day of March, 1905, relator, having been convicted of manslaughter, first degree, in the Supreme Court, Genesee county, was sentenced to be imprisoned in the state prison at Auburn for the determinate term of twenty years. This term would expire on or about the 15th day of March, 1925, subject to earned commutation for good behavior.

The Constitution of the state of New York (article 4, § 5) provides:

‘The Governor shall have the power to grant * * * commutations * * * after conviction * * * upon such conditions and with such restrictions and limitations as he may think proper. * * *’

This power is not subject to legislative limitations.

On or about May 22, 1914, relator's sentence was commuted by the Governor to an indeterminate term of nine years, two months, and five days minimum, to twenty years maximum, upon ‘the express condition that if the said Burd R. Atkins shall hereafter be convicted of any felony, committed during the period between the day of his discharge by reason hereof and the date of the expiration of the full term hereby commuted, he shall be deemed an escaped convict. With respect to the said commuted term, and in addition to the penalty which may be imposed for the felony committed during the period aforesaid, he shall be compelled to serve in the prison or penitentiary in which he may be confined for such felony, or, if not confined therefor in any prison or penitentiary, in the Clinton state prison for the portion of the term hereby commuted now remaining unserved without deduction or commutation for good behavior.’ He was discharged from prison by the state board of parole on his application on June 2, 1914. It does not appear that his sentence was commuted because he had earned a commutation and was allowed to go outside the prison walls on parole under the provisions of section 242 of the Prison Law applicable to earned commutations. Such may have been the fact, but the record does not disclose it.

Relator left the state of New York in 1915 and went to Ohio. In 1924 he was convicted of the crime of larceny in the state of Michigan before the expiration of the maximum term of his sentence, and sentenced to imprisonment and imprisoned in the Michigan state prison for a term of from two to five years. On or about October 30, 1926, after the expiration of the term of the original sentence, on his discharge from the Michigan prison, he was brought back to the state of New York as a fugitive from justice subject to interstate rendition. While it does not appear that the rendition proceedings were regular, he was in fact brought into the jurisdiction of this state. Ker v. Illinois, 119 U. S. 436, 7 S. Ct. 225, 30 L. Ed. 421. He was then detained by the warden under the original judgment of conviction for the unexpired term of the original sentence. He sued out a writ of habeas corpus. In his petition he set forth that he is held ‘under color of a fracture of the conditional commutation, having seized his body’ without due process of law after the expiration of the original sentence. The return set forth the original judgment, the conditional commutation, the release, the subsequent conviction, and the further allegation that the relator had been, on November 8, 1926, declared delinquent by the board of parole for state prisons as provided by section 217 of the Prison Law. The relator admits his original conviction and his conditional commutation. He denies that he was discharged on parole and that he has violated the conditions of his commutation. The Special Term held that the change from a definite sentence to an indefinite sentence presupposed the implied condition that the convict would be released under the jurisdiction of the board of parole, dismissed the writ, and remanded the prisoner. The Appellate Division reversed and ordered his discharge.

[1] The change from a determinate to an indeterminate sentence did not entitle the prisoner to his immediate discharge. Some authority had to fix the date thereof. He was thereby enabled to apply therefor to the state board of parole. Prison Law (Consol. Laws, c. 43), § 214. Clearly that was what the Governor had in contemplation when he commuted the sentence; otherwise, he would have ordered the discharge of the prisoner forthwith.

[2] Whether the board of parole in discharging relator attached other conditions to his release than those contained in the commutation of sentence does not appear. In the view that we take of the case, it is immaterial whether it did or did not, or whether it had power thus to limit the conditions of the commutation. If relator had been discharged as a paroled prisoner, subject to the jurisdiction of the parole board, he would be allowed to go upon parole outside of the prison walls, only ‘ upon such terms and conditions as said board shall prescribe, but to remain, while so on parole, in the legal custody and under the control of the agent and warden of the state prison from which he is so paroled’ until the expiration of his maximum term or his absolute discharge. He might be declared delinquent for violation of his parole, arrested, and imprisoned for a period equal to the unexpired maximum of his sentence at the time of such delinquency. Prison Law, §§ 215-217. On the hearing it was stated that relator was declared delinquent by the parole board for failure to report on June 21, 1915, but I find nothing in the record to establish that fact. In any event he was declared delinquent on November 8, 1926, after his recapture and a hearing before the board, for violating the conditions of his commutation. The earlier so-called delinquency was not the cause then assigned for his recapture.

This procedure under the provisions of the Prison Law, with its implication of wide discretion in the parole board in declaring delinquency, does not apply to the case of one who has become an escaped convict in the eyes of the law by violating the condition of his commutation. His rights are more explicitly defined. Code Crim. Proc. §§ 696, 697. He may not be retaken merely as a delinquent paroled prisoner by order of the parole board.

[3] The question remains whether relator was properly shown to be an escaped convict who might be recaptured without a new award of execution and confined under the authority of the original judgment. Penal Law, § 1693; Code Crim. Proc. § 696; Haggerty v. People, 53 N. Y. 476. The proofs taken at the hearing were informal in their character. We will, however, for the purposes of this proceeding, assume that the relator was convicted of a felony in Michigan although the return merely alleges a conviction of larceny. The point is made that conviction of felony outside the state of New York does not constitute a breach of the conditions imposed by the Governor in his commutation.

A felony is a crime which is or may be punishable by death, or imprisonment in a state prison. Penal Law, § 2. The question whether the consequence of any prior conviction under Penal Law, § 2189, relative to indeterminate sentences for felonies, is confined to convictions in this state was expressly reserved in People v. Gutterson, 244 N. Y. 243, 251, 155 N. E. 113. It has been held that the provision of the Revised Statutes that no person sentenced upon a conviction of felony shall be competent to testify in any case related only to a conviction in this state. Sims v. Sims, 75 N....