Wilson v. Wilson, Motion No. 499.

• Decision Date: 07 October 1940
• Docket Number: Motion No. 499.
• Citation: 295 Mich. 179,294 N.W. 145
• Parties: WILSON v. PARDON AND PAROLE BOARD. In re WILSON.
• Court: Michigan Supreme Court

295 Mich. 179

294 N.W. 145

WILSON

v. PARDON AND PAROLE BOARD.In re WILSON.

Motion No. 499.

Supreme Court of Michigan.

Oct. 7, 1940.

Mandamus proceeding by Richard Wilson against A. Ross Pasco and others and members of the Michigan Pardon and Parole Board, accompanied by application by Richard Wilson for writ of habeas corpus to secure discharge from imprisonment.

Writ of mandamus and writ of habeas corpus denied.

Argued before the Entire Bench.

Thomas Read, Atty. Gen., and Edmund E. Shepherd and Andrew De Maggio, Asst. Attys. Gen., for the State.

WIEST, Justice.

Petitioner, a prisoner in the branch of the State prison at Marquette, seeks our writ of mandamus commanding the members of the Pardon and Parole Board to grant him the relief hereinafter mentioned and, under writ of habeas corpus, to order his discharge from imprisonment. We issued an order for the board to show cause and a writ of habeas corpus accompanied by an ancillary writ of certiorari to bring before us the various proceedings involved. Returns have been made and the issues briefed.

October 5, 1929, in the circuit court for the county of Washtenaw, upon his conviction of the crime of breaking and entering in the night time, petitioner was sentenced to serve seven and one-half to fifteen years in the Michigan State prison at Jackson. The day after sentence, and while in the Washtenaw county jail awaiting transfer to the State prison, he broke jail and escaped. He was apprehended, informed against for the crime of breaking jail and escaping and, upon arraignment, in the circuit court for the county of Washtenaw, entered a plea of guilty and, October 14, 1929, was sentenced to be ‘confined at hard labor in the Michigan state prison for a period of three years from the day of the expiration of the sentence which the said respondent is now serving at the Michigan State Prison at Jackson.’

In January, 1930, he was arraigned in the circuit court for the county of Jackson, the information charging that on January 9, 1930, while ‘imprisoned for a term of years in a prison of this State, to-wit: Michigan State Prison at Jackson, did leave said prison without being discharged therefrom by due process of law.’

The information also charged his previous conviction and sentence for breaking and entering and that the offense of leaving the prison constituted him a second offender within the provisions of Act No. 175, Pub.Acts, 1927, as amended.

To the information he entered a plea of not guilty and the court appointed an attorney for him and, by consent, he was tried by a jury jointly with a like offender. At the trial his guilt, under his own testimony, was established beyond question and the trial judge so instructed the jury. He was found guilty and sentenced to ‘be confined at hard labor in the Branch of the Michigan State Prison at Marquette, Michigan for the minimum period of four years and for the maximum period of four and one-half years. The said sentence to begin at the (expiration of) said defendant's present sentence.’

September 30, 1936, the commissioner of pardons and paroles made the following order: ‘Do Hereby Annul the remaining portion of the sentence imposed upon Richard Wilson No. 5447 by the circuit court for the county of Washtenaw on October 5, 1929, for the crime of B&E nighttime to permit him to commence serving the sentence imposed upon him by the Circuit Court for the County of Washtenaw on October 14, 1929, for the crime of Breaking Jail.’

May 15, 1939, the board made the following order: ‘It is the order of this board that sentence of Oct. 14, 1929, of three to three years, for breaking jail, be terminated as of July 6, 1939, to permit subject on July 7, 1939, to begin the service of his subsequent sentence of four to four and a half years, for escaping prison, imposed Apr. 11, 1930. It is NOW the order of this Board that effective date on this termination as above mentioned be changed to read ‘effective as of May 24th 1939 and subject is to begin service of his subsequent sentence, as of May 25, 1939.’'

Petitioner asked the board if he was not entitled to special good time on the three-year sentence he was serving for breaking jail, and was informed: ‘You get regular good time. You are not getting special on your 3 to 3 year sentence.’

Petitioner claims the sentence of October 14, 1929,...