Pinkerton v. State

• Decision Date: 29 June 1940
• Docket Number: 6 Div. 663.
• Citation: 29 Ala.App. 472,198 So. 157
• Parties: PINKERTON v. STATE.
• Court: Alabama Court of Appeals

198 So. 157

29 Ala.App. 472

PINKERTON v. STATE.

6 Div. 663.

Court of Appeals of Alabama

June 29, 1940

Rehearing Denied Aug. 6, 1940.

Appeal from Circuit Court, Fayette County; V. W. Elmore, Judge.

Petition by Daniel Pinkerton for habeas corpus. From judgment denying relief, petitioner appeals.

Reversed and rendered.

Certiorari denied by Supreme Court in Pinkerton v. State, 198 So. 162.

Morel Montgomery, of Birmingham, for appellant.

Thos S. Lawson, Atty. Gen., and Chas. L. Rowe and Wm. H. Loeb Asst. Attys. Gen., for the State.

SIMPSON, Judge.

This appeal is from a final order of the Judge of the Circuit Court of Fayette County, denying the petition of Daniel Pinkerton for writ of habeas corpus. This quoted excerpt from the brief of distinguished counsel for appellant sufficiently states the facts:

"This appellant was convicted in the Circuit Court of Fayette County, Alabama, November 12, 1936, he was fined $50.00 by the jury, there was judgment for said fine, court costs and also as additional punishment 90 days hard labor was assessed by the court. Appeal was taken, but the appeal and result is moot. On March 4th, 1938, at Kilby Prison the appellant began his prison sentence. On March 7th, 1938, this appellant was granted a parole from his servitude by the then Governor, Bibb Graves. He was released from prison, returned to his home in Fayette County. He remained at large out of the immediate prison walls and confinement until February 13th, 1940, or for 23 months following this release granted by the Governor.

"February 13th, 1940, he was arrested by the Sheriff of Fayette County Alabama, by virtue of a warrant issued by the Alabama State Convict Department, to-wit, Wm. E. Persons, director of Prisons. The now created Alabama State Board of Pardon and Paroles had caused said warrant to issue it being alleged that his parole was by them revoked because appellant had or was about to lapse into criminal ways. He was arrested, confined to jail and seeks his release by writ of Habeas Corpus.

"The appellant contends he should be discharged from custody, his liberty restored and that the lower Court in this cause erred in its judgment denying or refusing the relief and denying his right to discharge from custody."

The predominant question of law presented here is succinctly stated in the brief of the able and astute Assistant Attorney General:

"Suffice it to say that this agreed statement of facts seeks to present the following question:

"Whether the State Board of Pardons and Paroles, created by Act No. 275, S. 186, approved August 25, 1939 (General Acts, 1939, p. 426) enacted in conformity to an amendment adopted at the election held pursuant to Act No. 8, S. 4, passed by the Senate and House of Representatives as amended on March 29, 1939 (General Acts, Special Session, 1939, p. 8), has the authority to revoke the parole for good behavior of a convict, where such parole was not the parole of an indeterminate sentence and was granted by the Governor under Act No. 25, H. 91, approved February 1, 1935 (General Acts, 1935, p. 42) prior to the effective date of the act creating such State Board of Pardons and Paroles, where the said Board has reasonable cause to believe that such convict had lapsed, or was probably about to lapse, into criminal ways or because he had violated the conditions of his parole in an important respect."

It may be well to observe, before entering a discussion of the question, that reason alone must be the light to guide us here, there being a scarcity of legal pronouncement dealing with the subject. After careful study of the question and attentive consideration to the briefs of counsel for the parties, this court is to the conclusion that the query thus posed by the Assistant Attorney General, with certain qualifications, hereinafter expressed, must be answered in the affirmative.

The amendment, supra, to Section 124 of the Constitution of Alabama is: "Section 124. The Governor shall have power to grant reprieves and commutations to persons under sentence of death. The Legislature shall have power to provide for and to regulate the administration of pardons, paroles, remission of fines and forfeitures, and may authorize the courts having criminal jurisdiction to suspend sentence and to order probation. No pardon shall relieve from civil and political disabilities unless specifically expressed in the pardon." (Italics ours.) Gen.Acts Spec.Sess.1939, p. 8, No. 8, Sec. 1.

The prerogative thus granted to the Legislature, upon adoption of this amendment, invested it with the "administration of * * * paroles" of every kind, whether in effect previous to the adoption of this amendment or granted subsequent thereto.

The purpose of the amendment was to adopt a new system by which the State should administer "pardons, paroles [and] remission of fines," etc., and whereby such matters--thus disposed to legislative authority--were transferred from executive power. Responsive to and acting under the authority thus invested, the Legislature, by due enactment, created a "Board of Pardons and Paroles" Gen.Acts 1939, p. 426 et seq., No. 275. In this Act there is a provision: "Such Board shall also be charged with the duty of supervising all prisoners released on parole from the jails or prisons of the state, and * * * of determining whether violation of parole * * * conditions exist in specific cases and, in the case of parolees, deciding what action should be taken with references thereto." (Italics supplied.) P. 427, Sec. 5.

From this quoted section of the Act, it is observed that the duty and authority of this newly created Board are extended to " all prisoners released on parole," and, in our opinion, these words have their evident meaning, and do comprehend "all prisoners," whether theretofore or thereafter "released on parole." Our opinion is further strengthened by the all-inclusive language not only of Section 5, supra, but also of Section 12 of the Act--here pertinent: "Whenever there is reasonable cause to believe that a prisoner who has been paroled has violated his parole, the Board at its next meeting shall declare such prisoner to be delinquent and time owed shall date from such delinquency." (Italics ours.) P. 430.

And, as quoted from the illuminating brief of the Assistant Attorney General:

"If it had been the legislative intent to limit the authority of the Board of Pardons and Paroles to those convicts who had been placed on parole by it, it would have been a simple matter to have enacted Section 5 so as to read: 'Such Board shall also be charged with the duty of supervising all prisoners released on parole by such Board from the jails and prisons' etc. and to have written into Section 12 the words, 'whenever there is reasonable cause to believe that a prisoner who has been paroled by such Board has violated his parole' etc., but we find no such limitations inserted."

Under the broad terms of the amendment it was clearly within legislative competence to so deal with the subject, and, as we conceive it, administration and supervision over these prisoners are now vested exclusively in the Board of Pardons and Paroles and divested out of the Executive Department of the State, and now beyond the power of the Governor thereof. Administration of paroles, etc., having been transferred from the Governor to said Board, by process of the two enactments hereinabove mentioned, concomitant authority is necessarily invested in said Board, by the Act creating it, to revoke such paroles.

To adopt the position that the Board's authority in the matter of paroles is limited to those granted by it alone, and that it does not include those prisoners on parole by executive orders prior to the creation of said Board, would be to say that eo instante, upon the adoption of said Constitutional amendment, the irrevocable and permanent release was effected of the countless hundreds of convicts (and former criminals) now on parole by former executive authority, irrespective of whether or not their maximum term of servitude had expired. Such a position is unreasonable, would be against public welfare, and, we believe, contrary to what should be the manifest interpretation of the two enactments, as well as the controlling legislative intent inherent at the time of their origination and passage.

This court is therefore of the opinion that the Board of Pardons and Paroles has like and complete jurisdiction and authority over all parolees, until the maximum sentence shall have been served (or unless sooner pardoned), in the manner hereinafter demonstrated.

The assertion of appellant that the Legislature was without authority to deal with convicts then on parole does not impress us. In addition to the consistency and logic of the position to the contrary, as demonstrated above, it may be added that parole is not a right, and has never been so regarded, but is a privilege, and the procedure or conditions for the retaking of parole violators may be altered after parole so as to affect the parolee, so long as the punishment is not increased. Malloy v. South Carolina, 237 U.S. 180, 184, 35 S.Ct. 507, 59 L.Ed. 905; Duncan v. Missouri, 152 U.S. 377, 382, 14 S.Ct. 570, 38 L.Ed. 485; People v. Hunt, D.C., 25 F.Supp. 647.

The conclusion having been reached that the authority of the Board of Pardons and Paroles is all-inclusive in matters of paroles and applicable alike to former parolees, as well as paroles inaugurated by the Board itself, it must logically follow that all parolees are now on a similar status, the laws and regulations regarding the paroled convicts of Alabama applying equally and alike to all of them.

We are then met with the insistence of appellant, through diligent ...