People ex rel. Richardson v. Ragen

• Decision Date: 20 May 1948
• Docket Number: No. 30478.,30478.
• Parties: PEOPLE ex rel. RICHARDSON v. RAGEN, Warden.
• Court: Illinois Supreme Court

400 Ill. 191

79 N.E.2d 479

PEOPLE ex rel. RICHARDSON

v.RAGEN, Warden.

No. 30478.

Supreme Court of Illinois.

May 20, 1948.

Original proceeding by the People, on the relation of John Richardson, against Joseph E. Ragen, Warden of the Illinois State Penitentiary at Joliet, for a writ of habeas corpus.

Writ quashed and petitioner remanded to the custody of the Warden.John Richardson, pro se.

George F. Barrett, Atty. Gen. (William C. Wines, of Chicago, of counsel), for respondent.

THOMPSON, Justice.

John Richardson, petitioner, an inmate of the Illinois State Penitentiary at Joliet, seeks to obtain his discharge by an original petition for a writ of habeas corpus filed in this court against Joseph E. Ragen, warden of said penitentiary. The writ issued, return was made and petitioner filed a reply. The cause is before us on the record and briefs filed by both parties.

Richardson, in September, 1939, was convicted of the crime of larceny of a motor vehicle in the criminal court of Cook County and sentenced to the penitentiary for a term of not less than one nor more than twenty years. He commenced the service of his sentence at Joliet on October 5, 1939, and was released on parole December 24, 1945. On May 28, 1946, while on parole he was inducted into the United States Army. A recommendation for final discharge was made to the Division of Paroles on August 16, 1946, and certificate of discharge was issued on September 17, 1946, but before delivery of this instrument to the prisoner, he was, on October 2, 1946, arrested in the city of Chicago in a stolen automobile with two other men, one of whom was an ex-convict. A loaded revolver was found in the car and petitioner was found to be A.W.O.L. from the army. He was held in jail and when he appeared before the court on October 29, 1946, he was surrendered to the Division of Supervision of Parolees on a parole-violation warrant issued October 9, 1946, the army authorities advising they would prefer that he be returned as a parole violator. He was returned to the Illinois State Penitentiary on November 8, 1946, and given a hearing by the Division of Correction on the question of parole violation. Upon such hearing he admitted the violations of his parole. After this hearing, on December 10, 1946, an order was entered by the Division of Correction revoking the order of September 17, 1946, granting final discharge which had never been delivered.

The petition alleges that in March, 1946, petitioner was inducted into the United States Army, that for the purpose of permitting him to enter the army the parole authorities suspended their supervision over him and at the same time also agreed that he would receive a final discharge from his sentence of imprisonment within six months after his induction into the army; that in accordance with said promise, said discharge was issued and was approved and signed by the Governor on September 17, 1946, but was never delivered to the petitioner or to anyone on his behalf.

It is further alleged that several weeks after the discharge was issued, and while the petitioner was still serving in the army, he was arrested in Chicago while riding in a stolen automobile and held in the county jail until November 8, 1946, and subsequently transferred to the Illinois State Penitentiary; that thereafter, on December 10, 1946, his discharge was unlawfully revoked.

Respondent's return to the writ sets up the judgment of conviction of the petitioner, commitment to the penitentiary and his release on parole. The return further alleges that while petitioner was at large upon parole, he was drafted into the army, departed from an army post at Fort Knox, Kentucky, without leave, became involved with a woman, and was arrested while riding in an automobile with armed companions.The return further alleges that before the petitioner had received his certificate of final discharge from his sentence of imprisonment, he was, because of his aforesaid conduct, declared a parole violator, that he was accorded a hearing before the Division of Correction, and, upon such hearing, admitted said violations of his parole. Petitioner's reply to the return did not deny his desertion from the army or of the other alleged parole violations, and did not deny that upon a hearing before the Division of Correction, he had admitted such parole violations.

The petitioner does not challenge the validity of his original imprisonment under the judgment and sentence of the criminal court. Nor does he deny the right of the Division of Correction to supervision and jurisdiction over him during the time he was on parole prior to his induction into the army, but claims that he has been improperly reimprisoned as a parole violator, and therefore is entitled to be discharged. This contention is based on subsection 2 of section 22 of the Habeas Corpus Act, which provides that a prisoner in custody under judicial process may be released, ‘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.

Petitioner contends that upon his induction into the army, the Division of Correction relinquished jurisdiction and control over him so long as he remained in the armed forces of the United States and agreed with him that after he had served six months in such armed forces, he would be given a discharge releasing him from the judgment and sentence under which he was committed to the penitentiary. He further contends that he served six months in the army and was entitled to his discharge, as promised, that at the time he was returned to the penitentiary as a parole violator he was still serving in the army, that his discharge had previously been issued, as promised, and had been approved and signed by the Governor, that it operated as a release or commutation of his sentence, notwithstanding such discharge was never delivered to him or to anyone on his behalf, and that the action of the Division of Correction in revoking such discharge was a violation of his constitutional rights. He also contends that the State of Illinois can have no jurisdiction over him until he is discharged from the armed forces of the United States, and therefore his imprisonment in the Illinois State Penitentiary, as a parole violator, on November 8, 1946, when he had not been released from service in the army, was unwarranted and unlawful.

It is the contention of respondent that petitioner's inchoate expectancy of final discharge was conditioned upon his abiding by the terms of his parole agreement and receiving the Governor's act of commutation, that actual receipt by a paroled prisoner of the Governor's act of commutation is prerequisite to the finality of his discharge, that petitioner has violated his parole agreement and has not received the Governor's document, and therefore is not entitled to be discharged from imprisonment.

The petitioner was convicted in 1939, and at that time, under section 7 of the Parole Act (Ill.Rev.Stat.1939, chap. 38, par. 807), the Department of Public Welfare was authorized to establish rules and regulations under which prisoners in the Illinois State Penitentiary might be allowed to go upon parole. It was provided, however, that a prisoner released on parole should, at all times until the receipt of his final discharge, be considered in the legal custody of the officers of the Department of Public Welfare and as remaining under conviction for the crime or offense of which he was convicted and sentenced and subject to be taken within the inclosure of the penitentiary from which he had been paroled. Full power to enforce such rules and regulations and to retake and reimprison any inmate upon parole was conferred upon the officers and employees of the Department of Public Welfare. Section 9 of the same act made it the duty of the Department of Public Welfare to keep in communication, as far as possible, with all prsoners on parole, and provided that ‘when, in the opinion of the Department of Public Welfare, any prisoner or ward who has served not less than six months of his or her parole acceptably (the Department of Public Welfare may require a longer service upon parole) has given such evidence as is deemed reliable and trustworthy that he or she will remain at liberty without violating the law and that his or her final release is not incompatible with the welfare of society; and whenever it shall be made to appear to the satisfaction of the Department of Public Welfare that any prisoner or ward has faithfully served his or her term of parole and the Department of Public Welfare shall have information that such prisoner or ward can safely be trusted to be at liberty and that his or her final release will not be incompatible with the welfare of society, the Department of Public Welfare shall have power to cause to be entered of record in its department an order discharging such prisoner or ward for or on account of his or her conviction or commitment, which said order when approved by the Governor shall operate as a complete discharge of such prisoner or ward, in the nature of a release or commutation of his or her sentence, to take effect immediately upon delivery of a certified copy thereof to the prisoner or ward, and the clerk of the court in which the prisoner or ward was convicted or committed shall, upon presentation of such certified copy, enter the judgment of such conviction or commitment satisfied and released pursuant to said order.’

The powers and duties which were, by the Parole Act, vested in the Department of Public Welfare at the time of petitioner's conviction in 1939, have, by subsequent action of the legislature, been transferred to the Division of Correction of the Department of Public Safety, but with that exception there has been no substantial change in the above-mentioned...