Woodward v. Murdock

• Decision Date: 21 June 1890
• Citation: 24 N.E. 1047,124 Ind. 439
• Parties: Woodward v. Murdock.
• Court: Indiana Supreme Court

124 Ind. 439

24 N.E. 1047

Woodward

v.Murdock.

Supreme Court of Indiana.

June 21, 1890.

Appeal from circuit court, La Porte county; Daniel Noyes, Judge.

Application of John T. Woodward for writ of habeas corpus.

Herod & Herod, for appellant. L. T. Michener, Atty. Gen., for appellee.

Berkshire, C. J.

The facts presented by the record in this case are as follows: On the 25th day of May, 1885, the appellant was sentenced by the judgment of the Marion criminal court, on a charge of embezzlement, to imprisonment in the northern penitentiary of the state, for a term of five years from that date. He was immediately conveyed to the prison, and continued as an inmate thereof until the 17th day of March, 1888, at which time he received a parole from the governor of the state. In accordance with said parole the appellant was relieved from imprisonment in said prison, and remained away therefrom until the 21st day of October, 1889, when, at the command of the governor, he was again remanded to said prison, and has continued as an inmate thereof since that time; the cause of his reimprisonment, as asserted by the governor, being a violation of the conditions on which he was paroled. From the time of his imprisonment to the date of his parole the appellant had earned good time equal to five and thirteen-thirtieths months, under the provisions of section 1 of the Acts of 1883, found in Elliott's Supplement as section 2026, and had he continued an inmate of said prison during the time he was out on parole he would have been entitled to a final release on the 12th day of December, 1889, and before the beginning of this proceeding, as it is not claimed that he had forfeited any part of said good time as provided in section 2 of said act. The following propositions arise for our consideration and determination: (1) Was the appellant entitled to credit for good time during his absence from the prison, in addition to that earned while an inmate of the prison? (2) What was the effect of the parole issued by the governor? Was it in contemplation of law an unconditional pardon, or what it purported and was intended to be, a mere parole? and, if but a parole, was the appellant subject to reimprisonment at the will of the governor, without a hearing before some judicial tribunal? (3) Was the appellant entitled to his final release at the expiration of five years, less the time for which he had credit because of good time to his credit?

It is very clear, we think, that the appellant could not earn good time while away from the prison. The right to credit for good time is purely a statutory right, and can only be acquired in the manner and under the circumstances pointed out by the statute. The language of the statute is, “that every convict who is now in or who may hereafter be confined in the penitentiaries of the state of Indiana, * * * and who shall have no infractions of the rules or regulations of the prisons or laws of the state recorded against him, and who performs in a faithful manner the duties assigned to him,” etc. It is only necessary to say that the language of the statute forbids its application to a prisoner when out of prison on parole. A prisoner cannot be out of prison and at the same time confined in prison; and when out of prison he can have no infractions of the rules and regulations of the prison recorded against him, nor can duties be assigned to him as a prisoner.

It is contended on the part of the appellant that the governor's parole had the same legal effect as an unconditional pardon, and therefore that his arrest and imprisonment thereafter was without authority of law. We cannot agree to this contention. Under the constitution of our state the pardoning power is vested in the governor, subject to such rules and regulations as may be made by law. Section 17, art. 5. The legislative department has not legislated on the subject, and it therefore follows that the power of the governor in this direction is supreme. Having unlimited power, he may grant paroles conditional pardons, and unconditional pardons. If this were not so his power would not be unlimited. We understand it to be a rule that is axiomatic that, where a governmental department is given unlimited power in a particular direction, it may exercise such power in a greater or less degree as to it may seem best. But were the power of the governor limited to the right to grant unconditional pardons the cause of the appellant would not be helped, for in that case the action of the governor in granting a parole was unauthorized and ineffectual, and the appellant was, in contemplation of law, absent from the...