Silvey v. Kaiser

• Decision Date: 10 July 1943
• Docket Number: No. 38696.,38696.
• Citation: 173 S.W.2d 63
• Parties: SILVEY v. KAISER, Warden of Missouri State Penitentiary.
• Court: Missouri Supreme Court

173 S.W.2d 63

SILVEY v. KAISER, Warden of Missouri State Penitentiary.

No. 38696.

Supreme Court of Missouri, en Banc.

July 10, 1943.

Ex parte proceeding by Edgar Silvey, petitioner, against Paul E. Kaiser, Warden of the Missouri State Penitentiary, wherein the petitioner by habeas corpus sought discharge from confinement in the penitentiary.

Petitioner remanded to custody.

Jos. M. Walsh and John L. Sullivan, both of St. Louis, for petitioner.

Roy McKittrick and W. C. Blair, both of Jefferson City, for respondent.

CLARK, Judge.

In December, 1925, the petitioner, Edgar Silvey, was convicted of a felony and duly sentenced to imprisonment in the Missouri penitentiary for the rest of his natural life. On January 8, 1942, on recommendation of the State Board of Probation and Parole, the Governor issued an order reciting that he did, for the purpose of parole, commute said sentence to a term ending the 12th day of January, 1942, entitling said Silvey to all the rights, privileges and immunities which resulted by the operation of said premises, upon certain express conditions therein set forth, followed by the recital that: "Failing in any of which, or upon the order of the Governor at any time he may be arrested and returned to the penitentiary and without a hearing there to serve out the remainder of his sentence".

On the ___ day of ____, 1943, the Governor issued an order revoking said parole or commutation, reciting that it had been made to appear to him that petitioner had violated the terms and conditions of his parole in certain specified particulars and ordering that he be returned to the penitentiary to serve the remainder of his unexpired sentence.

Petitioner contends that the Governor was without power to revoke the parole, because, in the order granting it, he failed to reserve to himself the authority: "first, to determine summarily and without a hearing a violation or breach by the parolee of the conditions imposed upon him by the terms of the executive order; and, second, to revoke the commutation for cause or otherwise".

In support of his contentions, petitioner mainly relies upon the case of Ex parte Strauss, 320 Mo. 349, 7 S.W.2d 1000, but also cites: Ex parte Webbe, 322 Mo. 859, 30 S.W.2d 612; Lime v. Blagg, 345 Mo. 1, 131 S.W.2d 583, and cases from other states.

In Ex parte Strauss, the petitioner had been discharged from the penitentiary on a commutation issued by the Governor upon certain express conditions. Later, on recommendation of the Department of Penal Institutions, the Governor revoked the commutation in an order reciting that it had been made to appear to him that petitioner had violated a specified condition of the commutation, and the petitioner was returned to the penitentiary. We held that, under the facts, the Governor was without power to revoke the commutation and that the petitioner was illegally restrained. We pointed out that Section 8 of Article V of the Missouri Constitution authorizes the Governor to attach to a commutation granted by him any condition he chooses, provided it is not illegal, immoral or impossible of fulfillment.

We also quoted with approval from 20 R.C.L. 572-575, as follows: "A condition in a pardon that the Governor may summarily determine whether the conditions have been complied with, and if he finds that they have not may revoke the pardon and order the reconfinement of the offender,...