People ex rel. Miller v. Nierstheimer

• Decision Date: 24 March 1949
• Docket Number: No. 30940.,30940.
• Citation: 402 Ill. 599,85 N.E.2d 10
• Parties: PEOPLE ex rel. MILLER v. NIERSTHEIMER, Warden.
• Court: Illinois Supreme Court

402 Ill. 599

85 N.E.2d 10

PEOPLE ex rel. MILLER

v.NIERSTHEIMER, Warden.

No. 30940.

Supreme Court of Illinois.

March 24, 1949.

Original habeas corpus proceeding by the People, on the relation of Joseph F. Miller, against Walter Nierstheimer, Warden.

Petitioner remanded to custody of warden.

Joseph F. Miller, pro se.

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

WILSON, Justice.

Joseph F. Miller, an inmate of the Illinois State Penitentiary, Menard Branch, filed in this court an original petition for a writ of habeas corpus against Walter Nierstheimer, Warden, seeking to obtain his discharge from custody. The writ issued, the respondent made a return, and on the record thus made the cause was submitted.

The petition and return disclose the following facts. On March 28, 1940, upon a plea of guilty in the circuit court of Fayette County, Miller was convicted of the crime of escaping from the Illinois State Farm and sentenced to imprisonment in the penitentiary for a term of not less than one year nor more than ten years. Petitioner entered the Menard Branch of the Illinois State Penitentiary on the following day. Subsequently, parole authorities of the State of Indiana filed a detainer warrant against petitioner charging him with violation of a parole to which he had been admitted following an earlier sentence and imprisonment in Indiana.

On March 17, 1941, the Illinois Parole Board entered an order in petitioner's case, as follows: ‘Paroled. Effective when the Indiana Authorities come for him. If not taken, case to be referred back to the Board.’ On May 8, 1941, petitioner executed a parole agreement and, on the same day, was turned over to the Indiana authorities. He was taken to the Indiana State Reformatory, at Pendleton, and there confined as a parole violator until July 17, 1943, when his sentence expired and he was discharged. Prior to his release, arrangements were made between the Illinois and Indiana parole officials whereby petitioner was to resume his Illinois parole in Indiana. The Indiana authorities provided him with a home and a sponsor and he became employed by the Goodyear Tire and Rubber Company at Muncie, Indiana. Subsequently petitioner made written monthly reports to the Illinois Parole Board and was credited with one year and six days on his sentence.

On July 15, 1944, petitioner was charged, in Indiana, with the theft of a tire and disappeared from his home and employment. In November, 1944, a parole violation warrant was issued in Illinois and the Division of Correction of the Department of Public Safety entered an order declaring petitioner to be a defaulter on his out-of-State parole. In July, 1947, petitioner was discovered in the Indiana State Farm, at Greencastle, serving a sentence of thirty days for petit larceny. Upon being released in Indiana on August 3, 1947, he was removed to Illinois and again confined in the Illinois State Penitentiary at Menard. The Division of Correction, at a meeting on September 16, 1947, declared Miller to be a parole violator and determined that he should serve the maximum term of his sentence and that, upon earning all allowable time, he would be discharged, sentence served in full, on October 18, 1951.

Petitioner does not attack his original conviction and sentence to the penitentiary in 1940, but asserts that, by reason of subsequent acts and events, he has been illegally detained and restrained of his liberty since June 29, 1946, and is entitled to an immediate release. More specifically, he contends (1) that his parole to the Indiana State Reformatory, at Pendleton, in 1941, was illegal and void; (2) that, since he was never legally paroled from the Illinois State Penitentiary, he cannot be detained as a parole violator; (3) that, by deducting all possible good time, a sentence of ten years is reduced to six years and three months, and (4) that, having earned all good time and lost none, he was entitled to be discharged on June 29, 1946. Petitioner denies that his maximum sentence of ten years, less good time earned, will not expire until October 18, 1951, as determined by the Division of Correction. From the difference between the dates of expiration of sentence contended for, it is evident that the parole officials do not consider the two years petitioner was paroled to the Indiana State Reformatory or the three years between his disappearance in 1944 and his re-entry into the penitentiary in 1947 as time served under his sentence in Illinois.

The first question presented for determination is whether petitioner's parole was regular and lawful at its inception. Section 7 of the Sentence and Parole Act, as it existed in May, 1941, provided in pertinent part, ‘* * * that no prisoner * * * shall be released from * * * the penitentiary * * * until the Department of Public Welfare shall have made arrangements or shall have satisfactory evidence that arrangements have been made for his or her honorable and useful employment while upon parole in some suitable occupation and also for a proper and suitable home free from criminal influence * * *.’ Ill.Rev.Stat.1939, chap. 38, par. 807. Although section 7 has since been frequently amended, the sole change in the quoted provision of the statute merely reflects the substitution of the Division of Correction of the Department of Public Safety for the Department of Public Welfare in Parole matters. Ill.Rev.Stat.1947, chap. 38, par. 807. Respondent virtually concedes that the parole of petitioner to the Indiana State Reformatory was erroneous as a matter of law. The order of March 17, 1941, releasing petitioner to the Indiana authorities did not provide for a home or place of employment and, obviously, the Indiana State Reformatory was neither an ‘honorable and useful employment’ nor a ‘home free from criminal influence.’ The action of the Parole Board was unwarranted by the Sentence and Parole Act and the purported parole was, therefore, illegal and void at its inception. People ex rel. Milburn v. Nierstheimer, 401 Ill. 465, 82 N.E.2d 438.

The next question to be decided is whether the parole although originally unlawful, subsequently became effective as a regular and legal out-of-State parole. Respondent urges that this result was accomplished in July, 1943, when petitioner was discharged from the Indiana State Reformatory and provided with a sponsor, a home and employment by the Indiana parole...