Rider v. McLeod, A-12534

• Decision Date: 26 March 1958
• Docket Number: No. A-12534,A-12534
• Citation: 323 P.2d 741
• Parties: Gene Austin RIDER, Petitioner, v. H. C. McLEOD, Warden of the Oklahoma State Penitentiary, and O. A. Pruitt, Acting Sheriff of Pittsburg County, Oklahoma, Respondents.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 741

323 P.2d 741

Gene Austin RIDER, Petitioner, v. H. C. McLEOD, Warden of the Oklahoma State Penitentiary, and O. A. Pruitt, Acting Sheriff of Pittsburg County, Oklahoma, Respondents.

No. A-12534.

Criminal Court of Appeals of Oklahoma.

March 26, 1958.

Syllabus by the Court

1. Where petitioner was serving a sentence in the Kansas State Penitentiary of from one to five years, and after serving the minimum sentence of one year and one month, applied for a parole, and the Board of Penal Institutions recommended parole of prisoner to detainer, and prisoner agreed in writing, under specified conditions, to be paroled to Chief of Police of Saint Louis, Missouri, and that he would comply with conditions set out, and further entered into a written parole contract, in furtherance of the provisions of the Interstate Parole Compact Act, 57 O.S.1951 § 347, as authorized by the Congress of the United States, 48 Stat. 909, 18 U.S.C.A. § 420, now 4 U.S.C.A. § 111, all the states of the Union then being parties thereto, such conditional parole accepted by the prisoner became binding upon him.

2. One convicted of crime has right to reject offer of parole, but having once elected to accept parole, he is bound by its express terms.

3. While ordinarily a state's jurisdiction over persons is confined to those within its borders, it may legally enter into a compact with sister states whereby it may parole a person convicted of crime within its borders to a sister state, member of the compact, and retain jurisdiction over said parolee for purpose of returning him within its borders, until the sending state's judgment of conviction is satisfied.

4. Where petitioner, the prisoner paroled from Kansas to detainer in Missouri, leaves Missouri and comes to Oklahoma where he is convicted of a felony and sentenced to the Oklahoma State Penitentiary, and the proper authorities in Kansas determine that said parolee has broken his parole and file with the Warden of the Oklahoma State Penitentiary a hold order, held that the terms of the Interstate Parole Compact Act, 57 O.S.1951 § 347(3) must prevail and the decision of the sending state (Kansas) to retake petitioner on parole is conclusive on this state and not reviewable by the courts of this State, and when prisoner has satisfied the Oklahoma sentence he must be held for the proper Kansas authorities.

5. States parties to the Interstate Parole Compact have waived all legal requirements to obtain extradition of fugitives from justice, and the questions on habeas corpus when the Interstate Parole Compact is relied on are: (1) Whether a compact between the governors as authorized by statute has been entered into; (2) whether the officer apprehending or to receive the person involved is a duly accredited officer of the sending state (Kansas here); (3) whether the person apprehended is in fact a probationer or parolee of that State; and (4) whether the sending state has revoked the probation or parole of the person apprehended and decided to retake him.

Original proceeding in which Gene Austin Rider seeks his release from custody of H. C. McLeod, Warden of the Oklahoma State Penitentiary, and O. A. Pruitt, acting sheriff of Pittsburg County, Oklahoma, by writ of habeas corpus. Writ denied.

Carroll Samara, Herbert K. Hyde, Oklahoma City, George L. Hill, McAlester, for petitioner.

Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., Ewing C. Sadler, County Atty., Pittsburg County McAlester, for respondents.

POWELL, Judge.

The State of Oklahoma at this time has outstanding 'Interstate Parole Compacts' with forty-seven other states of the Union. The State of Kansas since 1947, Missouri since 1945, and Oklahoma since 1945 have been signatory to the Compact. See 57 O.S.A.1957 cumulative pocket parts giving list. See Laws 1945, p. 186, title being, 'An Act providing that the State of Oklahoma may enter into a compact with any of the United States for material helpfulness in relation to persons convicted of crime or offenses who may be on probation or parole.' This Act appears as Title 57 O.S.1951 § 347, the pertinent part of which is as follows:

'The Governor of this State is hereby authorized and directed to execute a Compact on behalf of the State of Oklahoma with any of the United States legally joining therein in the form substantially as follows:

'A Compact entered into by and among the contracting states, signatories hereto, with the consent of the Congress of the United States of America, granted by an Act entitled 'An Act granting the consent of Congress to any two or more states to enter into agreements or Compacts for cooperative effort and mutual assistance in the prevention of crime and for other purposes'. ¹

'The contracting states solemnly agree:

'(1) That it shall be competent for the duly constituted judicial and administrative authorities of a state party to this Compact (herein called 'sending State'), to permit any person convicted of an offense within such state and placed on probation or released on parole to reside in any other state party to this Compact (herein called 'receiving State'), which while a [on] probation or parole, if

'(a) Such person is in fact a resident of or has his family residing with [sic] the receiving state and can obtain employment there;

'(b) Though not a resident of the receiving state and not having his family residing there, the receiving state consents to such person being sent there.

'Before granting such permission, opportunity shall be granted to the receiving state to investigate the home and prospective employment of such person.

'A resident of the receiving state, within the meaning of this Section, is one who has been an actual inhabitant of such state continuously for more than one year prior to his coming to the sending state and has not resided within the sending state more than six (6) continuous months immediately preceding the commission of the offense for which he has been convicted.

'(2) That each receiving state will assume the duties of visitation of and supervision over probationers or parolees of any sending state and in the exercise of those duties will be governed by the same standards that prevail for their own probationers and parolees.

'(3) That duly accredited officers of a sending state may at all times enter a receiving state and there apprehend and retake any person on probation or parole. For that purpose no formalities will be required other than establishing the authority of the officer and the indentity of the person to be retaken. Any legal requirements to obtain extradition of fugitives from justice are hereby expressly waived on the part of states party hereto, as to such persons. The decision of the sending state to retake a person on probation or parole shall be conclusive upon and not reviewable within the receiving state: Provided, however, That if at the time when a state seeks to retake a probationer or parolee there should be pending against him within the receiving state any criminal charge, or he should be suspected of having committed within such state a criminal offense, he shall not be retaken without the consent of the receiving state until discharged from prosecution or from imprisonment for such offense.

'(4) That the duly accredited officers of the sending state will be permitted to transport prisoners being retaken through any and all states parties to this Compact, without interference. * * *' [Emphasis now supplied.]

Petitioner being in custody of the Warden at the State Penitentiary at McAlester applied to the district court of Pittsburg County for a writ of habeas corpus, but in the meantime petitioner was placed in custody of the sheriff of Pittsburg County, and the said sheriff was made a party to the proceedings, where it was alleged he was being 'held for Kansas authorities.' After a hearing the district court of Pittsburg County denied the writ, and thereafter independent application was made to this court for a writ of habeas corpus, a procedure permissible under our practice. There is no provision in this State for appeal to this court from adverse action by a trial court on a petitioner's application for a writ of habeas corpus. A transcript containing the testimony heard and the exhibits received in evidence in the district court was at hearing before this court admitted in evidence.

The record discloses the following:

Gene Austin Rider was convicted of the crime of grand larceny in the district court of Finney County, Kansas, and sentenced to the penitentiary for the period of one to five years, one year being the minimum sentence, and five years the maximum; that he served upon said sentence in said Kansas penitentiary one year and one month of 'solid' time, and that he served the minimum time fixed by law in the State of Kansas for said crime; that at the conclusion of said minimum sentence and on October 5, 1954 he was recommended for parole by the Board of Penal Institutions of the State of Kansas, which recommendation was approved by the Governor of that state, and on October 15, 1954 he entered into an agreement with the state of Kansas to go to the state of Missouri under a retainer theretofore filed by the chief of police of the city of Saint Louis, state of Missouri, as will be hereinafter detailed. In accordance with the agreement, petitioner was on release from the Kansas State Penitentiary taken by a representative of the chief of police of Saint Louis to that city and placed in jail to stand trial on a charge of armed robbery there pending. After a number of hearings and continuances, extending over a period of two months, two city detectives, following a hearing, told petitioner to get his possessions as he was to go free, and that petitioner asked them where he was to go, and that they advised him that anywhere was all right as long as he got out of Missouri. That immediately after his release from the jail, petitioner returned...