State v. Rimmer

• Decision Date: 02 April 1915
• Citation: 174 S.W. 1134,131 Tenn. 316
• Parties: STATE EX REL. GREENE v. RIMMER, WARDEN. STATE EX REL. SCRUGGS v. RIMMER, WARDEN.
• Court: Tennessee Supreme Court

174 S.W. 1134

131 Tenn. 316

STATE EX REL. GREENE v. RIMMER, WARDEN.

STATE EX REL. SCRUGGS v. RIMMER, WARDEN.

Supreme Court of Tennessee.

April 2, 1915

Certiorari to Court of Civil Appeals.

Habeas corpus, on the relation of Walter M. Greene and Edward Scruggs, against G. W. Rimmer, Warden of the State's Prison. Writs denied, and relators petition for certiorari. Petitions denied.

FANCHER J.

These two cases were instituted in the circuit court of Davidson county. The Greene case is a petition for writ of habeas corpus, whereby Walter M. Greene, a convict in the penitentiary, seeks to obtain his discharge from the penitentiary on the ground that he had served his minimum term under the Indeterminate Sentence Law (chapter 8, Acts of 1913).

He was convicted at the May term of the criminal court of Davidson county of petit larceny, and was sentenced to serve an indeterminate sentence of from one to five years in the state penitentiary for said crime. He was received at the penitentiary at Nashville, Tenn., in May, 1913. He filed this petition November 28, 1914.

He avers that the defendant Rimmer is now the warden of the state penitentiary, and assumes to have the custody and control of the petitioner; that he has served the minimum sentence as provided by law, and has observed all the rules and regulations formulated by the board of prison commissioners and said warden, as authorized and required by said act; that he has heretofore made application on the blanks prepared by said warden and board of prison commissioners to be paroled under the terms of said act (chapter 8, Acts 1913), said application in every way meeting every requirement and rule required by said act; but that said board and warden have refused to release him on parole as required by the terms of the act, by reason of which he avers that he is unlawfully restrained of his liberty by said warden, and is entitled to be set at liberty by the orders of the court, subject to the terms, conditions, and restrictions prescribed by said act, and to the rules and regulations adopted by said board and warden under the terms of the act. He avers that the prison officials have no discretion in granting or refusing paroles, but that it is mandatory upon the board of prison commissioners to grant the parole as soon as he has completed his minimum term.

The lower court and the Court of Civil Appeals refused the relief sought, for the reason that the statute gives a discretion in the matter to the board of prison commissioners, and that the court cannot dictate the terms of a parole; also for the reason that the remedy of habeas corpus cannot lie--that, if the petitioner has any right, it must be determined upon mandamus against the prison board to compel them to act, and until ordered released by the board the warden was bound to detain the prisoner.

In his petition for certiorari to this court, the applicant sets forth that the parole law was taken from the statute of Kentucky, and that in the cases of Wilson v Commonwealth, 141 Ky. 341, 132 S.W. 557, and Board v. Smith, 155 Ky. 425, 159 S.W. 960, it was held that the board possessed no discretion in the matter, and that the act is mandatory upon the board to grant the parole as soon as the prisoner has served his minimum term and complied with the requirement of the act.

It is insisted that our statute is practically identical with the Kentucky law, both using the words "shall have the power to parole," and that the Legislature of Tennessee, in adopting the law, also adopted the judicial construction placed upon it prior to the passage of our act.

It is insisted that this court, in the case of Woods v. State decided at the April term, 1914, at Jackson, 169 S.W. 558 gave an opinion upon the constitutionality of said law, and that the remarks in the opinion pertaining to the question of the discretion of the board are dictum; that the court was in error in its construction of the law in that case, and that that construction should now be overruled.

This is a very important question, involving the rights of many hundreds of prisoners, and we have undertaken to give the question the consideration it deserves, and have again considered the holding of the court in the case of Woods v. State. It must be admitted that the court of Kentucky has taken a different view of this question. The two laws are very similar, though not identical. There is nothing to show that our statute was taken from the act of Kentucky, although in its essential features it is in effect about the same. In Wilson v. Commonwealth, 141 Ky. 341, 132 S.W. 557, it was held that the act of 1910 of that state gave the prisoner convicted under the Indeterminate Sentence Law of Kentucky a right to the parole after the minimum term of the sentence prescribed by the law had been served, since to hold the prisoner longer in confinement would be making his punishment to that extent depend solely upon the will of the board of prison commissioners, a nonjudicial body. In the case of Board of Prison Commissioners v. De Moss, 157 Ky. 289, 163 S.W. 183, the holding in the Wilson and Smith Cases was reviewed. The Legislature of Kentucky in the meantime had passed an amendment to the act, which, upon its face, appears to give the board of prison commissioners a discretion to refuse or grant a parole. This amendment provides that the board of prison commissioners shall consider the application for parole, together with the prisoner's record of deportment in the penitentiary, on the determination of his right to parole or discharge, and upon said record the commissioners may, in their discretion, grant or refuse the application.

It was again held in the De Moss Case, upon review of the statute as amended, that after a convict had served his minimum term, if he had complied with the conditions upon which he was entitled to parole, namely, that for nine months previous while serving the minimum term, he was "obedient to the rules and regulations of the institution," the board of prison commissioners would be without legal right to refuse to parole him, and it was considered that to give the board an arbitrary right to refuse the parole would be to defeat the object of the law, having in view the sentiment now obtaining in the more enlightened countries of this and the Old World, that society is in some measure responsible for the wrongdoing of its criminal classes; such sentiment giving place to more humane treatment that will have a tendency to reform and make them useful members of society. The court in that case passed on the effect of the act of 1912 of the Kentucky Legislature, whereby it would seem that there was an effort of the Legislature to make clear that a discretion was given...