People ex rel. Milburn v. Nierstheimer, 30552.

• Decision Date: 03 January 1949
• Docket Number: No. 30552.,30552.
• Citation: 401 Ill. 465,82 N.E.2d 438
• Parties: PEOPLE ex rel. MILBURN v. NIERSTHEIMER.
• Court: Illinois Supreme Court

401 Ill. 465

82 N.E.2d 438

PEOPLE ex rel. MILBURN

v.NIERSTHEIMER.

No. 30552.

Supreme Court of Illinois.

Nov. 18, 1948.

Writ of Certiorari Denied Jan. 3, 1949.

See 69 S.Ct. 402.

Original habeas corpus proceeding by the People, on the relation of Charles Milburn, against Walter Nierstheimer, warden.

Petitioner remanded to custody of warden.

Charles Milburn, pro se.

George F. Barrett, Atty. Gen. (Edward Wolfe, of Springfield, of counsel), for respondent.

CRAMPTON, Justice.

Charles Milburn, a prisoner held in the Menard Branch of the Illinois State Penitentiary under a parole-violation warrant, seeks a release on habeas corpus.

On June 13, 1938, upon a plea of guilty of the crime of robbery, he was sentenced by the circuit court of St. Clair County for a term of not less than one nor more than twenty years. On June 11, 1946, the Division of Correction entered a purported order of parole, effective July 30, 1946, with the proviso that the United States Marshal of Danville, Illinois, and the United States Attorney of St. Louis, Missouri, be notified before petitioner's release. On July 30, 1946, he was turned over to the United States Marshal and taken to a Federal court at St. Louis, Missouri, where he was convicted of a Federal offense and placed on probation. At the time of his delivery to the Federal authorities he signed a form of parole agreement wherein it was recited that he was thereby ‘temporarily and conditionally * * * Turned over to U. S. Marshall of Danville, Ill.’ No sponsor or place of employment was deisgnated. After he was placed under Federal probation the Illinois Division of Correction entered an order as follows: ‘15455-Charles Milburn. Application for permission to do out-of-state parole in Missouri, granted.’ The record contains no statement that an application for such parole was actually made. The respondent in his return alleges that pursuant to an arrangement between the Illinois and Missouri parole authorities the petitioner was placed under the supervision of the latter, a proper home and employment having been found for him in St. Louis, Missouri. Nothing appears in the record before this court showing the terms and conditions of the alleged out-of-State parole. It does not appear that any parole papers were signed by or delivered to petitioner, other than that whereby he was turned over to the United States Marshal.

The return of respondent shows that petitoner disappeared from his place of employment in St. Louis; that he was subsequently discovered at the Indiana State Farm, to which he had been committed upon conviction of various misdemeanors; that a parole-violation warrant was issued and an order entered by the Division of Correction declaring him a defaulter on out-of-State parole; and that upon expiration of his sentence in the Indiana institution he was extradited to Illinois and incarcerated in the State Penitentiary at Menard. Thereafter, on May 12, 1947, petitioner was given a hearing, declared to be a parole violator, and passed for the maximum of his sentence.

Petitioner, in his petition for the writ, assumes that his delivery to the Federal authorities was made by virtue of a warrant of extradition issued by the Governor of Illinois. The respondent in his return denies that the Governor of the State of Illinois ever ordered petitioner extradited from Illinois to Missouri. Petitioner filed a document entitled ‘Traverse To Respondent's Brief,’ in which he sets forth a conversation in his presence between a deputy warden and the United States Marshal in the former's office at the time of his transfer to the latter's custody. The deputy warden is alleged to have asked the United States marshal if he wanted extradition papers, to which the marshal replied, ‘No, that he had already obtained his own.’ This is the only matter alleged to overcome respondent's assertion that the Governor did not order petitioner extradited. No copies of any extradition papers are produced and the record is silent upon the method whereby respondent obtained any authority to turn the prisoner over to Federal authorities.

The petitioner's claim to his release is based on paragraph 2 of section 22 of the Habeas Corpus Act, which provides that a prisoner can be discharged ‘Where, though the original imprisonment was lawful, yet, by some act, omission or event which has subsequently taken place, the party has become entitled to his discharge.’ Ill.Rev.Stat.1947, chap. 65, par. 22. He contends that he was not released by virtue of any parole issued by the Division of Correction, and that ‘the warrant of extradition issued by the Governor of Illinois, which resulted in he delivery of your petitioner to the federal authorities, constituted a waiver of jurisdiction by the State of Illinois over the person of your petitioner, and acted as a pardon or commutation of the sentence and relieved him from serving he balance and relieved him imposed upon him by the St. Clair Circuit Court.’

It his delivery to the Federal Authorities was in fact made upon a warrant of extradition issued by the Governor, his contention would prevail, under our holding in People ex rel. Barrett v. Bartley, 383 Ill. 437, 50 N.E.2d 517, 521, 147 A.L.R. 935. In that case the ...