State ex rel. Newman v. Lowery, 32825
| Decision Date | 07 May 1952 |
| Docket Number | No. 32825,32825 |
| Citation | 105 N.E.2d 643,157 Ohio St. 463 |
| Parties | , 47 O.O. 338 STATE ex rel. NEWMAN v. LOWERY et al. |
| Court | Ohio Supreme Court |
Relator is incarcerated in the Ohio Penitentiary by virtue of a commitment after a finding of guilty of a felony charged in an indictment. After serving the minimum of the term of sentence, relator appeared before the Pardon and Parole Commission, which, on March 9, 1950, after consideration of his application for parole, voted to parole him 'on or after April 20, 1950, when arranged by Bureau of Probation and Parole.' On April 10, 1950, before the parole became effective or the prisoner released, the commission rescinded the action of March 9, 1950, and voted to continue the application for parole until March 1955.
Thereafter the relator filed a petition in mandamus in the Court of Appeals to require reinstatement of the commission's order granting a parole and at the same time and under the same docket number filed a petition in habeas corpus.
The Court of Appeals held that the commission had discretionary power to make the order of April 10, 1950, and remanded relator to the custody of the warden of the Ohio Penitentiary.
The cause is now in this court on appeal as of right from the judgment of the Court of Appeals denying the appellant's 'petition for a writ of mandamus.'
Robert E. Holmes and Irwin Barkan, Columbus, for appellant.
C. William O'Neill, Atty. Gen., and Thomas R. Lloyd, Columbus, for appellees.
The question of parole of prisoners being in the discretion of the Pardon and Parole Commission, that commission had authority to rescind its order of March 9, 1950, granting a parole effective on or after a future date. The record discloses no abuse of discretion on the part of the commission in its order of rescission. The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
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...was thoroughly considered in In re Varner, 166 Ohio St. 340, 142 N.E.2d 846. See also State ex rel. Newman v. Lowery, et al, Ohio Pardon and Parole Commission, 157 Ohio St. 463, 105 N.E.2d 643. "The reasoning in the Varner case in relation to habeas corpus is equally applicable to an action......
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...liberty interest for due process purposes." 641 F.2d, at 414. In dissent, Judge Phillips explained: "In State ex rel. Newman v. Lowery, 157 Ohio St. 463, 464, 105 N.E.2d 643 (1952), cert. denied, 344 U.S. 881 [73 S.Ct. 176, 97 L.Ed. 682] (1952), the Supreme Court of Ohio said: 'The ques- ti......
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Varner, In re
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