In Re Dawsett

Bushnell, J. In this habeas corpus matter an ancillary writ of certiorari was issued directing the bureau of pardons and paroles of the department of corrections to certify its records in the matter of issuing a warrant for the arrest of the petitioner on January 20, 1942. Petitioner William Dawsett was sentenced on June 7, 1934, in the circuit court for the county of Washtenaw, to a term of 2 to 14 years, upon his plea of guilty to the crime of forgery. On February 6, 1936, he was paroled to the warden of the Michigan State Prison for delivery to the sheriff of Cattaraugus county, New York, “if and when called for.” He pleaded guilty when arraigned in the county court at Little Valley, New York, on the charge of grand larceny, alleged to have been committed May 25, 1934, at the city of Olean, for which crime he had been indicted on September 25, 1934. The New York court suspended sentence on condition that the defendant “meet the requirements imposed upon him by the Michigan parole board and upon the further condition that restitution be *591 made to Dr. Forbes of Olean for damages to a car in tbe snm of $85, witb'interest, to be paid on or before June 1, 1936.” Subsequently Dawsett wrote a letter to tbe bureau addressed to Assistant Director A. Boss Pascoe, in wbicb he advised tbe bureau of tbe New York conviction and suspended sentence; that be bad an opportunity to be employed in Cbicago wbicb would enable bim to comply witb tbe requirements of tbe New York court, and be asked that reply be addressed to bim at 2258 Clybourn street, Cbicago, Illinois. On March 23d tbe supervisor of paroles, Balpb Benson, replied to tbis communication asking for further information, and Dawsett was informed that if be remained in Cbicago be would have to be paroled to George Scully, superintendent of supervision, for a six months’ period, witb Lieut. Col. Habkirk of tbe Salvation Army acting as sponsor. On March 27th Dawsett wrote a letter to Benson stating that be would not be able to get in touch witb Col. Habkirk, who was ill, that be planned to take a position in Texas and would keep supervisor Benson and Col. Habkirk informed. On April 10th Col. Habkirk reported to supervisor Benson that Dawsett bad been interviewed by bim, that be was then employed and desired permission to work outside tbe State of Illinois. On tbe same day tbis letter was written a new parole was issued naming George Scully, superintendent of supervision of parolees at Chicago, as Dawsett’s “first friend,” and Scully was advised as to tbe history of tbe case. Scully was later authorized to permit Dawsett to travel outside tbe State under such stipulations as be might see fit to make. In June tbe bureau was advised by the sheriff of Cattaraugus county that information was desired as to Dawsett’s where *592 abouts. The authorities in Chicago were unable to locate Dawsett, he presumably having absconded from his Chicago parole. On November 18, 1936, the bureau was advised by the chief parole officer of Detroit that Dawsett had received a sentence in the recorder’s court of Detroit of 90 days in the Detroit House of Correction, upon conviction of larceny. Dawsett was returned to the State Prison on February 18, 1937, where, after a hearing, he was found guilty of violating his parole. He was again paroled on October 21, 1937, for one year and returned on August 10,1939, because of a violation of this parole on August 31, 1938. On March 26, 1941, he was paroled1 to Jackson county for 18 months, where he violated his parole on April 3, 1941, and was returned to prison on May 1, 1941. He was again paroled to Detroit for 18 months on December 23, 1941, and was returned to prison on February 4, 1942, for violation of this parole. He remained in the prison at Jackson until May 19,1942, when he was transferred to the prison at Marquette, where he is now incarcerated. He argues that he should now be released from custody because his original “release” to the State of New York constituted a complete relinquishment of jurisdiction by the State of Michigan, and that if it should be held that such release was conditional its conditions have been fulfilled. In support of this argument he cites numerous authorities from other jurisdictions, none of which is directly in point. The court said in Re Eddinger, 236 Mich. 668, 670: “The purpose of a parole is to keep the prisoner in legal custody while permitting him to live beyond the prison enclosure so that he may have an oppor *593 tunity to show that he can refrain from committing crime. It is a conditional release, the condition being'that if he makes good he will receive an absolute discharge from the balance of his sentence; but if he does not make good he will be returned to serve his unexpired time. The absolute discharge is something more than a release from parole. It is a remission of the remaining portion of his sentence. Like a pardon, it is a gift from the executive, and like any other gift it does not become effective until it is delivered and accepted. After delivery, it cannot be recalled.” Under the provisions of Act No. 89, Pub. Acts 1935 (Comp. Laws Supp. 1940, §17509-1 et seq., Stat. Ann. §28.1361 et seq.), authorizing compacts with other States for mutual helpfulness in relation to persons convicted of crime or offenses, or who are or may be at large on probation or parole, Daw-sett was surrendered for delivery to the State of New York. Such surrender was not in the nature of an extradition to New York, but his status was that of a paroled prisoner whose visitation and supervision were assumed by the State of New York. The New York court saw fit to require Dawsett, as one of the conditions of his suspended sentence, to “meet the requirements imposed upon him by the Michigan parole board.” The rules and regulations of Michigan governing Dawsett’s conduct while on parole were attached to and made a part of his delivery to New York. These rules read as follows: “Bule 1. The paroled prisoner shall at once report to his designated first friend for instructions as to residence and work. In case he finds it necessary to change his employment or residence he shall first obtain the written consent of the governor through his first friend. *594 “Rule 2. 'He shall at the end1 of each month, until his final release, make a written report to his first friend, stating whether he has been constantly at work, during the month, and if not, why not; how much he has earned, and how much he has expended, together with a general statement as to his surroundings and prospects. “Rule 3. He shall in all respects conduct himself honestly, avoid evil associations, and in general pursue the course of a law-abiding citizen. “Rule 4. He shall'abstain from the use of all intoxicating liquors as a beverage. “Rule 5. He shall not leave the State without permission from the governor. “Rule 6. He shall, while on parole, remain in the legal custody and under the control of the governor of the State. “Rule 7. He shall be liable to be retaken and again confined within the enclosure of the prison from which he was paroled for any reason or reasons that will be satisfactory to the governor, and at his sole discretion, until he receives a copy of his final discharge. “Rule 8. If he fails to report to his first friend on the last of each month, or is guilty of doing any acts prohibited by the prison rules, he will be subject to forfeitures. “Rule 9. If he fails to return to the prison enclosure when required by the governor so to do, or if he makes escape while on parole, he will be treated in all respects as if he had escaped from the prison enclosure. “Rule 10. In case he finds it necessary to leave the county to which he is paroled for any purpose, he shall first obtain the written consent of the governor through his first friend.” That Dawsett was fully aware of the térras and conditions under which he was delivered to New York is borne out by his subsequent correspondence *595 with the Michigan authorities. That he violated' the terms and conditions of his parole is evident from the facts stated above. Nor was his delivery to New York a relinquishment of jurisdiction by the State of Michigan. Act No. 255, Pub. Acts 1937 (Comp. Laws Supp. 1940, § 17543-11 et seq., Stat. Ann. 1944 Cum. Supp. §28.2071 et seq.), is a revision, consolidation and codification of the laws relating to paroles, tet cetera. Chapter 3, § 8, of the act (Comp. Laws Supp. 1940, § 17543-48, Stat. Ann. 1944 Cum. Supp. § 28.2108) reads in part as follows: “Every prisoner on parole shall remain in the legal custody and under the control of the commission. ’ ’ "While in such custody and control the parolee is deemed to be serving the sentence imposed upon him. People v. Bendoni, 263 Mich. 295. We accept and adopt the statement of Judge Gillespie in his Michigan Criminal Law and Procedure, vol. 1, § 672, as follows: “A parole granted to a prisoner is construed simply as a permit to go without the enclosure of the prison, and not as a release, and while so at large the prisoner is deemed to be still serving out the sentence imposed upon him by the court, and is entitled to good time allowance the same as if he were confined in prison. * * * “When a prisoner applies for his parole, he applies under the provisions of the law, and agrees to its terms, and fully understands that for the misconduct provided in the statute he may be taken back to serve out his term of sentence. ' This power of recall is lodged in the bureau of pardons and paroles. * * * Without the power to retake the prisoner there would be no incentive to good behavior through fear of being again imprisoned.” *596 See People v. Cook, 147 Mich. 127, and Robinson v. Gries, 277 Mich. 15. The petitioner has not sustained the burden of showing that the conditions of his parole have been met. He was properly removed to the State prison at Marquette to serve out his sentence and should remain there until its completion, unless the bureau of pardons and paroles should determine otherwise. The writ of habeas corpus is dismissed. -Starr, C. J., and North, Wiest, Butzel, Sharpe, Boyles, and Reid, JJ., concurred.