People ex rel. Barrett v. Dixon

• Decision Date: 19 September 1944
• Docket Number: No. 27990.,27990.
• Citation: 387 Ill. 420,56 N.E.2d 816
• Parties: PEOPLE ex rel. BARRETT, Atty Gen., v. DIXON, Judge.
• Court: Illinois Supreme Court

387 Ill. 420

56 N.E.2d 816

PEOPLE ex rel. BARRETT, Atty Gen.,

v.DIXON, Judge.

No. 27990.

Supreme Court of Illinois.

Sept. 19, 1944.

Original proceeding by the People, on the relation of George F. Barrett, Attorney General, against George C. Dixon, Judge of the Circuit Court of Lee County, for a writ of mandamus commanding respondent to expunge from the records of that court his order entered upon a petition for writ of habeas corpus.

Writ awarded.George F. Barrett, Atty. Gen. (Felix Visk, of Springfield, of counsel), for petitioner.

Edward A. Jones and Edwin W. Merrick, both of Dixon, for respondent.

THOMPSON, Justice.

The People ex rel. George F. Barrett, Attorney General, filed an original petition in this court, praying for the issuance of a writ of mandamus commanding George C. Dixon, judge of the circuit court of Lee county, to expunge from the records of that court his order entered upon a petition for a writ of habeas corpus, discharging Wayne Youngs from the custody of Joseph E. Ragen, warden of the Illinois State Penitentiary, Joliet Branch. Respondent judge of said court has filed a motion to dismiss which is treated by this court as a demurrer to the petition. An order was also entered by this court, on motion of respondent, striking certain extraneous statements from the reply brief of petitioner. The issue presents questions of law which develop the major proposition contended for by respondent, that the parole authorities of this State, by refusing and neglecting to rearrest the prisoner and reture him to this State before the expiration of his maximum sentence, lost jurisdiction, and, therefore, the acts of the Illinois authorities were unauthorized by law.

The facts admitted by the motion to dismiss are that the prisoner was convicted on April 16, 1930, for confidence game, and sentenced for an indeterminate term of from one to ten years, and pursuant thereto he was incarcerated in the Illinois State Penitentiary at Joliet. On April 17, 1931, he was granted a conditional out-of-the-State parole to be fulfilled in Michigan. On May 11, 1931, he executed a parole agreement, which embodied the rules governing prisoners on parole, among which were that he must respect and obey the laws, that he must not leave his employment without the warden's consent, and that a violation of any of the rules forfeited the parole and rendered the prisoner liable to be returned to the penitentiary to serve out the unsatisfied portion of his maximum sentence.

The statute in force at the time of the conviction, sentence and parole of Youngs provided, in substance, that until final discharge a parolee should be considered as remaining in the legal custody of the officers of the Department of Public Welfare and subject to be taken at any time within the enclosure of the penitentiary or other institution from which he was paroled, and that if any prisoner so conditionally released or paroled should flee from the State, he or she might be returned pursuant to the provisions of the laws of this State relating to fugitives from justice. Ill.Rev.Stat.1931, chap. 38, par. 807, sec. 7. The same statute, chap. 38, par. 808, sec. 7a, provided for the granting of an out-of-the-State parole, and, in substance, made provision that if any prisoner so paroled should violate his parole agreement, he should, ‘from the date of such violation be deemed to owe the State of Illinois service for the remainder of his or her maximum sentence, and should such prisoner or ward so violating said parole again at any time return to the State of Illinois, he or she shall be subject to be again arrested,’ and returned to the penitentiary or other institution from which he was paroled. In determining the length of service he would still owe the State, the statute provided that he should be given credit on the maximum term for time faithfully served in prison and on parole ‘before violation.’ These statutory provisions were made, by statute, a part of his sentence. Ill.Rev.Stat.1931, chap. 38, par. 802, sec. 2.

The prisoner first went to Michigan but violated his parole and went to Ohio, where, in 1931, he was convicted and sentenced to the penitentiary for a term of from one to three years. In 1932 the parole authorities of Illinois advised the Ohio prison officials that the State of Illinois would not incur the expense of returning him to the penitentiary in this State unless he should be apprehended within this State. When he was released from the Ohio penitentiary in 1934, no effort was made to return him to Illinois. In 1935 he was arrested, convicted and sentenced to the Michigan penitentiary for a term of from two and a half to seven years. From that prison he was parole in 1937, and the Illinois authorities made no effort to return him to the penitentiary at Joliet. In 1937 he was sentenced to serve a term in the Nebraska State Penitentiary for a term of two years. On June 28, 1939, he was turned over to the officers of New York, and in being taken to that State he was lodged in the county jail in Joliet, Illinois, over night, and the Illinois authorities allowed him to be taken to Buffalo, where he rceived a penitentiary sentence of three years. On October 28, 1939, the Illinois authorities placed with the New York authorities a detaining or arrest order and on July 17, 1941, he was returned to Illinois. On July 25, 1941, he was returned to the penitentiary at Joliet to serve the unsatisfied term of his maximum sentence.

It will be observed that if he had remained in the Illinois penitentiary, without a parole, from the time of his original commitment, his maximum sentence would have expired on April 16, 1940. The arrest or detaining order was placed with the New York authorities about six months prior to that expiration date but he was not returned to Illinois until one year and three months after that date. However, the warden's warrant for his arrest as a parole violator was issued December 29, 1931, and the Illinois Parole Board declared him a parole violator on January 11, 1932.

It is argued in support of the validity of the order of discharge that the prisoner was illegally returned to Illinois and unlawfully reincarcerated because he, as a violator of an out-of-the-State parole, could be returned to the penitentiary only if he voluntarily returned to this State. The argument is that section 7 of the Parole Act, hereinbefore referred to, authorized an involuntary return of a prisoner, who, while on an intrastate parole, flees beyond the limits of the State; and that section 7a of said act, by proper construction, restricts the power of the parole authorities in this State to rearresting an out-of-the-State parolee only upon his voluntary return to this State. This argument is not tenable for two reasons and has been fully and convincingly answered by previously well-considered cases where the facts were so clearly analogous as to be almost on all fours, insofar as the particular question is concerned.

In People ex rel. Ross v. Becker, 382 Ill. 404, 47 N.E.2d 475, 479, it was urged that the State waived all right to claim for service unless a prisoner, on banishment parole, at some future time returned voluntarily to Illinois, and the contention was there based on section 7a, paragraph 808, of the statute, the same as is the contention in this case. This court answered that argument, contrary to the position now taken by respondent, in these words: ‘a paroled prisoner who has left the State of conviction pursuant to the terms of his parole, as here, but later violates his parole, is a person charged with crime and a fugitive from justice subject to extradition,’ citing Reed v. Colpoys, 69 App.D.C. 163, 99 F.2d 396, certiorari denied, 305 U.S. 598, 59 S.Ct. 97, 83 L.Ed. 379. The same contention was similarly settled in People ex rel. McGee v. Hill, 350 Ill. 129, 183 N.E. 17. It is no longer an open question in this State.

It has also been held that a prisoner, who, while out on parole, is convicted and sentenced for a subsequent offense, thereby forfeits, by his own conduct, the privileges granted by his parole, and his rights and status as to his first sentence, which was interrupted and suspended by his parole, were analogous to those of an escaped convict. Zerbst v. Kidwell, 304 U.S. 359, 58 S.Ct. 872, 82 L.Ed. 1399, 116 A.L.R....