Ware v. Sanders
| Decision Date | 19 February 1910 |
| Citation | 124 N.W. 1081,146 Iowa 233 |
| Parties | LEROY WARE, Plaintiff, v. J. C. SANDERS, Warden of the State penitentiary at Fort Madison, Iowa, Respondent |
| Court | Iowa Supreme Court |
Habeas corpus proceedings. The material facts are stated in the opinion. Writ sustained.
Writ sustained.
W. L Livingston and Read & Read, for plaintiff.
K. E Sallman and H. H. Carter, for respondent.
The plaintiff, Leroy Ware, was for several years cashier of a bank at Seymour, Iowa. In the year 1907 the bank was found to be insolvent. Twenty-two several indictments were returned against Ware charging him with making false entries in the books, and with embezzlement and with fraudulent banking. At the March, 1908, term of the district court of Wayne County the accused withdrew his plea of not guilty to one of the indictments charging him with making a false entry in the books of the bank, and entered a plea of guilty, with an agreement by the State, approved by the court, that all of the other cases against him should be continued on his motion, and none of them brought to trial during his term of imprisonment under the sentence to be pronounced against him in the case in which the plea of guilty was taken. On said plea judgment was entered, and the accused sentenced to confinement in the penitentiary at Ft. Madison for a term of five years. A mittimus was thereupon issued in the usual form, directing the sheriff to execute the judgment by delivering the prisoner into the custody of the warden at the penitentiary at Ft. Madison for imprisonment therein according to the terms of his sentence. The sheriff performed his duty under said writ, and obtained and returned the voucher of the warden acknowledging having received said prisoner into his custody. One year and two months later the Board of Parole, acting as it claimed within the authority given it by law, granted to said Ware a parole, the terms of which were reduced to writing in words as follows:
Parole Agreement.
Know all men by these presents: That the Board of Parole of the State of Iowa, desiring to test the ability of Leroy Ware, an inmate of penitentiary, to refrain from crime and lead an honorable life, do, by virtue of the authority conferred upon them by law, hereby parole the said Leroy Ware, and allow him to go on parole outside the buildings and inclosures of said penitentiary, subject however, to the following rules and regulations:
1st.--He shall proceed at once to the place of employment provided for him, viz., with C. C. Bullard, Ft. Madison, Iowa, and there remain during the period of his parole.
2d.--In case he finds it desirable to change his employment or residence, he shall first obtain the written consent of the Board of Parole, through the secretary.
3d.--He shall, on the 1st day of every month, until his final release forward by mail to the Board of Parole a report of himself, stating whether he has been constantly at work during the last month, and if not, why not; how much he has earned and how much expended, together with a general statement as to his surroundings and prospects, which report must be indorsed by his employer.
4th.--He shall, in all respects, conduct himself honestly, avoid evil associations, obey the law, and totally abstain from smoking cigarettes and from the use of intoxicating liquors or visiting places wherein it is sold, and he shall avoid all places of evil repute.
5th.--As soon as possible after reaching his destination, he shall report to Mr. C. C. Bullard, show him his parole, and at once enter upon the employment provided for him. He shall also report by mail his arrival at destination.
6th. --He shall, while on parole, remain in the legal custody and under the control of said Board of Parole.
7th.--He shall be liable to be retaken and again confined within the inclosure of said penitentiary for any reason that shall be satisfactory to the Board of Parole, and at its sole discretion, until he receives notice from the secretary that his final release has been ordered.
8th.--To secure his absolute pardon, he must, at the expiration of the parole period, which can be in no case less than one year, procure the recommendation of the Board of Parole.
The Board of Parole has a continued interest in the subject of this parole, and he need not fear nor hesitate to freely communicate with the secretary in case he lose his situation or becomes unable to labor by reason of sickness or other disability.
During this period of parole, he may rely upon the aid and counsel of the said board and the secretary.
Given in duplicate this 8th day of May, 1909, by authority of the Board of Parole.
Board of Parole.
Countersigned:
B. W. Garrett, Secretary.
Acceptance of Parole.
I, Leroy Ware, an inmate of the penitentiary, hereby declare that I have carefully read and do clearly understand the contents and conditions of the above parole, and I hereby accept the same, and do pledge myself honestly to comply with said conditions.
Signed in duplicate, this 14th day of May, 1909.
Leroy Ware.
Certificate of Parole.
I, B. W. Garrett, hereby certify that I am secretary of the Board of Parole; that as such secretary I have the custody of the records of said Board of Parole; that the foregoing is a true and correct copy of the order of parole issued by said board to Leroy Ware, as fully and completely as the same is of record in the office of said board.
B. W. Garrett, Secretary.
Warden's Return.
To the Board of Parole: Sirs--This parole came into my hands May 9, 1909, and by virtue thereof and subject to the conditions therein imposed, I permitted the within named Leroy Ware to go outside the inclosure of this institution this 14th day of May, 1909, at the hour of 12:30 a. m.
J. C. Sanders, Warden.
Immediately after this action by the Board of Parole had been announced warrants of arrest were issued, presumably at the instance of the county attorney of Wayne County, upon some of the indictments still pending against Ware, and he was arrested thereunder at Ft. Madison. Application for writ of habeas corpus was presented to Judge Bank of Lee County, who refused to entertain the proceeding, on the ground that the proper jurisdiction for such proceeding was in the court where the judgment of imprisonment was rendered. The sheriff then removed the petitioner from Lee County to the Wayne County jail, where he remained for several weeks, when he was released on bail. At the October, 1909, term of said district court the motion of the accused for continuance of the cases against him, pursuant to the agreement made when he entered a plea of guilty in the case in which he had been sentenced, was sustained. Thereafter, and at the same term, the county attorney presented to the court a motion in the following form:
State of Iowa v. Leroy Ware.
Application for Recommitment of the Defendant to the Penitentiary at Ft. Madison.
Comes now K. E. Sallman, county attorney in and for Wayne County, Iowa, and states to the court that he believes, and has reason to believe, that the defendant has left the penitentiary by his own leave, and is now at large, within the jurisdiction of this court, and therefore asks that the defendant be recommitted to the penitentiary at Ft. Madison, Iowa, to serve the balance of the unexpired sentence imposed upon him at the March term, 1908, of this court, upon his plea of guilty, under case No. 7,411, and as grounds thereof states:
First. That the said defendant was sentenced by this court at the March term, 1908, for a period of five years, at hard labor in the penitentiary at Ft. Madison, which term has not expired.
Second. That on or about May 14, 1909, the said defendant was permitted to be released from said penitentiary by the warden thereof, by order of the Board of Parole of the State of Iowa, and by reason of said pretended release by said warden, and by order of said Board of Parole, the defendant is now at large.
Third. That the pretended release by said warden, under order of said Board of Parole, was wholly without authority of law, in this: That the offense of which said defendant was sentenced in case No. 7,411 was committed prior to July 4, 1907, and that the acts creating said Board of Parole and defining its powers and duties does not apply to offenses committed prior to July 4, 1907, and that the act of said warden, under the order of said Board of Parole, was absolutely void and without authority of law, in that said Board of Parole had no jurisdiction over said defendant for the reason above set forth.
Fourth. That the said act of the said Board of Parole in paroling said defendant and permitting him to be at large was unconstitutional and without authority of law, in that it is an attempt by said Board of Parole to interfere with a valid judgment and sentence imposed by this court in a case wherein the offense was committed prior to July 4, 1907.
Wherefore, K. E. Sallman, county attorney in and for Wayne County, Iowa, asks the court to make such order herein that will carry out the sentence and judgment pronounced by this court in said case No. 7,411, and that the defendant be recommitted to the state penitentiary at Ft. Madison, Iowa, to serve out the remainder of said sentence.
K. E. Sallman,
County Attorney, Wayne Co., Iowa.
The court sustained the motion and entered an order that the defendant (plaintiff herein) be "recommitted to the penitentiary at Ft. Madison to serve out the remainder of the sentence imposed March 10, 1908," and that a mittimus issue accordingly. A warrant reciting these terms was thereupon issued and delivered to the sheriff, who in obedience thereto returned ...
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Ex parte Jerman
...should be issued as a matter of right. They rely largely upon the cases of Ex parte Clarke, 100 U.S. 399, 25 L.Ed. 715, and Ware v. Sanders (Iowa) 124 N.W. 1081. In both these cases it is recognized as a proceeding, when issued by the Supreme Court, by which the judgment of the lower court ......
- Ware v. Sanders