State ex rel. Reed v. Howard

• Decision Date: 31 October 1946
• Docket Number: No. 28231.,28231.
• Citation: 224 Ind. 515,69 N.E.2d 172
• Parties: STATE ex rel. REED v. HOWARD, Warden.
• Court: Indiana Supreme Court

224 Ind. 515

69 N.E.2d 172

STATE ex rel. REED

v.HOWARD, Warden.

No. 28231.

Supreme Court of Indiana.

Oct. 31, 1946.

Habeas corpus proceeding by the State, on the relation of Marvin Reed, relator, against Ralph Howard, Warden of the Indiana State Prison. From a judgment denying a writ of habeas corpus, the relator appeals.

Judgment affirmed.Appeal from LaPorte Circuit Court; Lee L. Osborn, Judge.

Marvin Reed, of Michigan City, pro se.

James A. Emmert, Atty. Gen., Frank E. Coughlin, First Asst. Atty. Gen., and George W. Hadley, Deputy Atty. Gen., for appellee.

RICHMAN, Judge.

This appeal is from a judgment denying a writ of habeas corpus. The petition therefor shows that July 10, 1937, appellant upon conviction of a felony was sentenced to the custody of the Board of Trustees of the Indiana Reformatory for an indeterminate term of one to ten years, which, we may assume, he served. In the same court in 1942 he was convicted of another felony and, with knowledge of the prior conviction, the judge sentenced him to the Reformatory for an indeterminate term of two to five years, where he was confined until February 17, 1945, when over his protest he was transferred to the State Prison on an order made by the State Department of Public Welfare pursuant to clause (n) of § 52-1104 Burns' 1933 Supp., enacted in 1936. This order, he contends was void as an unconstitutional interference by an administrative board with the sentence of the court, subjecting him, he says, to the greater stigma of confinement in the State Prison.

The place of punishment of convicts is within the control of the legislature designation of which it may delegate to other agencies. Mellot v. State, 1942, 219 Ind. 646, 40 N.E.2d 655. Such designation is an exercise of an administrative function. Sengstack v. Hill, Warden, 1936, D.C.M.D.Pa., 16 F.Supp. 61;Bernstein v. United States, 1918, 4 Cir., 254 F. 967, 3 A.L.R. 1569. Here the statute gave the judge the choice of sending a twice convicted felon, more than 21 and less than 30 years of age, either to the State Prison or the Reformatory. § 9-1820, Burns' 1933. In making such a choice the judge exerted no judicial power. Persons convicted in the federal courts are ‘committed, for such terms of imprisonment as the court may direct to the custody of the Attorney General of the United States or his authorized representative, who shall designate places of confinement where the sentences of all such persons shall be served.’ U.S.C.A. Title 18, § 753f. If fixing the place of imprisonment were a judicial act the Attorney General would have no power so to act. This section was held not to violate the Fifth Amendment which contains the due process clause operating in restriction of federal power. Stewart v. Johnston, 1938, 9 Cir., 97 F.2d 548, certiorari denied 312 U.S. 677, 61 Sup.Ct. 447, 85 L.Ed. 1117.

The sentencing of appellant in 1942 was made with the knowledge that the State Department of Public Welfare had been delegated the authority to transfer the convict from either institution to the other ‘at will, when, in its discretion, it is deemed advisable for the welfare of the * * * inmate.’ § 52-1104, supra. This statutory authority was inherent in the sentence to the same extent as if it had been expressly stated therein. Mellot v. State, supra; Woodward v. Murdock, 1890...