State ex rel. McQueen v. Horton, 8 Div. 327.

• Decision Date: 02 February 1943
• Docket Number: 8 Div. 327.
• Parties: STATE ex rel. McQUEEN, Atty. Gen., v. HORTON, Probate Judge.
• Court: Alabama Court of Appeals

14 So.2d 557

31 Ala.App. 71

STATE ex rel. McQUEEN, Atty. Gen., v. HORTON, Probate Judge.

8 Div. 327.

Alabama Court of Appeals

February 2, 1943

Rehearing Denied March 2, 1943.

Wm N. McQueen, Atty. Gen., and Bowen W. Simmons, Asst. Atty Gen., for petitioner.

Wm. C. Rayburn, of Guntersville, for respondent.

RICE, Judge.

Troy Teal was in the custody of the Sheriff of Marshall County under and by virtue of a fugitive warrant issued by the director of the State Department of Corrections and Institutions of the State of Alabama.

He petitioned the respondent herein for the writ of habeas corpus, seeking his release from such custody.

The facts involved, all without dispute, are as follows, to-wit Troy Teal was on February 23rd, 1932, convicted in the Circuit Court of Marshall County of the offense of grand larceny, and duly sentenced to serve imprisonment in the penitentiary for a term of from three to four years.

From the above judgment of conviction he, with sentence suspended took an appeal to the Court of Appeals of Alabama.

While said appeal was pending and undermined, and on April 7th 1932, Troy Teal was again convicted in the Circuit Court of Marshall County of the offense of grand larceny, and sentenced to serve imprisonment in the penitentiary for the term of nine years six months, minimum, to ten years, maximum. He began, immediately on April 7th 1932, service in the penitentiary on this latter sentence.

Thereafter, and on July 25th 1932, Troy Teal authorized, and there was entered, an order of dismissal of his appeal taken from the judgment entered on February 23rd, 1932; and the sentence thereunder imposed thereupon, and on said July 25th, 1932, became effective and operative.

The act creating our State Board of Pardons and Paroles went into effect on August 25th 1939. Gen. Acts 1939, p. 426, Code 1940, Tit. 42, §§ 1-18.

Prior to that date,-i.e. August 25th 1939-Troy Teal, subsequent to his incarceration in the penitentiary on April 7th 1932, had been granted numerous temporary paroles, aggregating 1,545 days.

Subsequent to August 25th, 1939 Troy Teal had been outside the walls of the penitentiary, on parole, from October 29th, 1941 until October 27th, 1942, or a total of 363 days. On October 29th, 1942 he was taken in custody by the Sheriff of Marshall County under the authority of the fugitive warrant mentioned in the first paragraph of this opinion.

Upon the filing of his petition for the writ of habeas corpus hereinabove mentioned, and the return thereto by the Sheriff of Marshall County, these things were made plainly to appear:

1. That petitioner contended that his term of imprisonment, or, more properly, terms of imprisonment, in the penitentiary, had expired by operation of law; and

2. That, in any event, the State Board of Pardons and Paroles had improperly, or on insufficient grounds, revoked his parole granted on October 29th, 1941.

We say, "upon * * * the return thereto by the sheriff" these things were "made plainly to appear." That statement may not be in minute detail accurate. But what we would make clear is, that, upon this petition for writ of prohibition,-taking note of the agreements of counsel, the briefs of same, and the argument at the bar-it is contended as we have noted.

And this explanation is made because one of the authorities upon which we expect to rely in making our decision, viz: Browne, Gdn., etc., v. Superior Court in and for City and County of San Francisco et. al. 16 Cal.2d 593, 107 P.2d 1, 131 A.L.R 276, holds to the effect that a writ of prohibition may be granted to restrain the issuance of habeas corpus by a lower court where facts are brought out which, if they had been called to the attention of the lower court, would have constituted good ground for the dismissal of the proceeding.

We doubt the necessity of the "explanation," though, because the pleadings, and the rulings thereon, in the habeas corpus proceedings before respondent, leave small room for doubt that he expected and intended, if unrestrained, to adjudicate the two matters we have numbered "1" and "2" hereinabove.

We entertain no doubt, and hold, that if, as a matter of fact, Troy Teal's term (s) of imprisonment had expired by operation of law, he was entitled to his release. And the petition for the writ of habeas corpus seeking to ascertain whether or not this was true was not improperly filed with respondent herein. Code 1940, Tit. 15, § 6.

But once having ascertained that said term (s) of imprisonment had not so expired, the authority and jurisdiction of respondent, for reasons we will undertake to make clear later in this opinion, came to an end; and he should have, thereupon, denied the petition-rather, dismissed the same.

It is definitely the policy, and provision, of our law that two (or more) terms of imprisonment in the penitentiary imposed upon a convict for separate convictions shall be served consecutively, not concurrently. Code 1940, Tit. 45, § 32. This could only mean that at the expiration of the first, operative, term of such imprisonment the next operative term shall begin.

Hence we consider it immaterial that Troy Teal, by the simple expedient of filing an appeal from the conviction suffered on February 23rd, 1932, postponed the beginning of service on the term of imprisonment imposed on that conviction, until after he had begun service of the term imposed for his conviction on April 7th, 1932. In any event-his appeal being dismissed, later-he was due to serve both terms, not concurrently, but consecutively-surely successively.

It therefore appears that by simple operation of law his period of confinement in the penitentiary, which began on April 7th, 1932 could not have expired until approximately October 7th, 1944.

But, he says, he was out on temporary paroles for a period of 1,545 days between April 7th, 1932 and August 25th, 1939-the date of the going into effect of the act creating our State Board of Pardons and Paroles-and that these days should be subtracted from his period of lawful confinement in the penitentiary. And he seems to rely upon our decision and opinion in the case of Pinkerton v. State, 29 Ala. App. 472, 198 So. 157, certiorari denied 240 Ala. 123, 198 So. 162, as authority for this contention.

But we held no such thing in the Pinkerton case, supra.

Under the law as it obtained prior to the creation of our State Board of Pardons and Paroles a convict released on parole might, upon violating the condition of his parole, be rearrested by direction of the Governor, and required to serve out the unexpired part of the sentence of the court, as though no parole had been granted. Fuller v. State, 122 Ala. 32, 26 So. 146, 45 L.R.A. 502, 82 Am.St.Rep. 17.

In other words, he obtained no credit whatsoever on his imposed term (s) of imprisonment for the time he was out on parole (s) prior to the date of the creation of our State Board of Pardons and Paroles, supra.

Not so, since that date, however. As so well pointed out by Judge Simpson for this court in the opinion in the case of Pinkerton v. State, supra, it is now, and since the date of the creation of our State Board of Pardons and Paroles, the law that a convict "released on parole" is to all intents...