State v. Kinnear

• Decision Date: 02 December 1927
• Docket Number: 20752.
• Citation: 261 P. 795,145 Wash. 686
• Parties: STATE ex rel. McCOSKE v. KINNEAR et al.
• Court: Washington Supreme Court

261 P. 795

145 Wash. 686

STATE ex rel. McCOSKE v. KINNEAR et al.

No. 20752.

Supreme Court of Washington

December 2, 1927

Department 1.

Application by the State of Washington, on the relation of John F McCoske, for certiorari to be directed to R. M. Kinnear and others to review the decision of the Parole Board. Writ denied.

Hayden Langhorne & Metzger, of Tacoma, for appellant.

John H Dunbar and E. W. Anderson, both of Olympia, for respondents.

FRENCH J.

This is an application for a writ of certiorari by which petitioner a prisoner in the state penitentiary, seeks to review the action of the parole board in its refusal to allow good conduct credits on his minimum sentence, thus making him eligible for parole before the full term of his minimum sentence has been served.

The good conduct credits to persons in the state penitentiary are granted by reason of the legislative act found in chapter 29, Laws of 1887-88, and afterwards re-enacted in chapter 147, p. 353, Laws of 1891, the same being section 10223, Rem. Comp. Stats., which provides:

'The board of control shall require of every able-bodied convict confined in the penitentiary as many hours of faithful labor in each and every day during his term of imprisonment as shall be prescribed by the rules and regulations of the penitentiary. Every convict who shall have no refraction of the rules and regulations of the penitentiary or laws of the state recorded against him, and who performs in a faithful, orderly and peaceful manner the duties assigned to him, shall be allowed from his term, instead and in lieu of the credits heretofore allowed by law, a deduction of two months in each of the first two years, four months in each of the next two years, and five months in each of the remaining years of his term, and pro rata for any part of the year where the sentence is for more or less than a year. Each convict shall be entitled to these deductions unless the board of directors shall find that for misconduct or other cause he should not receive them. But if any convict shall commit any assault upon his keeper or any foreman, officer, convict or persons, or otherwise endanger life, or shall be guilty of any flagrant disregard of the rules of the penitentiary, or commit any misdemeanor, or in any manner violate any rules and regulations of the penitentiary, he shall forfeit all deductions of time earned by him for good conduct before the commission of such offense, or that, under this section, he may earn in the future, or shall forfeit such part of such deductions as to the board of directors may seem just; such forfeiture, however, shall be made only by the board after due proof of the offense and notice to the offender, nor shall any forfeiture be imposed when a party has violated any rule or rules without violence or evil intent, of which the board shall be sole judges. The board shall have power to restore credits forfeited, for such reasons as to them may seem proper.'

The first question to be determined is whether or not this section above quoted has been repealed by the enactment of our Criminal Code, the same being chapter 249, Laws of 1909. Good conduct statutes such as ours have been held by the courts of Indiana and California to have been impliedly repealed by the enactment of indeterminate sentence laws. Davis v. State, 152 Ind. 34, 51 N.E. 928, 71 Am. St. Rep. 322; McCoy v. Reid, 172 Ind. 182, 87 N.E. 1086; In re Lee, 177 Cal. 690, 171 P. 958; Ex parte Thompson, 54 Cal.App. 177, 201 P. 473; Ex parte Piantanido, 56 Cal.App. 259, 205 P. 17.

It is true that in some of the cases above cited the holding may not have been necessary for a proper determination of the case, but the reasoning contained in these cases is very persuasive. In the McCoy Case, supra, the court said:

'We, however, are fully confirmed that the statute of 1883 was repealed or superseded by the indeterminate sentence law of 1897 herein involved. The provisions of the former act do not fit into, or consist with, those presented by the latter for dealing with the discipline, management, parole, and final liberation or discharge of prisoners confined thereunder in the Indiana State Prison. An examination of the provisions of the good-time statute, supra, and those of the indeterminate act in question, will fully reveal the inconsistencies of the one with the other, and the inapplicability of the former to the provisions of the latter. The two statutes cannot stand

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