Ware v. Sanders

Weaver, J. The plaintiff, Leroy Ware, was for sev-. • eral years cashier of a bank at Seymour, Iowa. In the year 1901 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; ■ ... — 236 — 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. O. 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 — 237 — expiration of the parole period, which ■ can be in no case less than one year, procure the recommendation of the Board of Parolé. 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 siclmess 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. W. H. Berry, J. M. Emmert, P. A. Smith, 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 sáme, 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 — 238 — 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. O. 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 Pt. 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 Pt. 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 Pt. Madison, Iowa, to serve the balance of the unexpired sentence imposed upon him at the March term, 1908, of — 239 — 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. II. E. Sallman, County Attorney, Wayne Co., Iowa. The court sustained the motion and entered an order that the defendant (plaintiff herein) be “recommitted to — 240 — 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 the petitioner to the warden at Ft. Madison “to serve out the remainder of his term.” On October 30, 1909, the petitioner by his counsel presented to Hon. Emlin McClain, a judge of this court, an application for a writ of habeas corpus to determine the validity of the order of the district court by which he had been rearrested and reconfined within the walls of the penitentiary. Upon reading said petition Judge McClain ordered the writ to issue returnable before the full bench. There is no dispute as to the facts, and the questions of law involved have been submitted upon written briefs. That the’ position of the warden in this case may not’ be misconstrued it should be said that he has not denied, and does not of his own motion now deny, the authority of the Board of Parole or the validity of its order with reference to the confinement of said Ware. Said issue is raised by the county attorney of Wayne County on behalf of the prosecution against Ware, and in support of the authority of the district court to make said order of recommitment; the attitude of the warden being simply that of an officer who wishes to know what may be his duty in the premises, and to perform it. 1. Habeas corpus: jurisdiction. — 241 — 2. Same: nature of writ: rules governing its application: construction. — 240 — 1. Both by motion and in argument counsel for the State attack the jurisdiction of this court to entertain or pass upon plaintiff’s petition, because the application for the writ was not made to the court or judge most convenient to the petitioner, as provided by Code, section 4420. While the section referred to provides a general rule directing the application to be made to the most convenient judge, it does not expressly provide that such judge has exclusive jurisdiction, nor does it com — 241 — mand the more remote judge to whom it may be presented to refuse the writ, but the language is that he “may refuse the same.” The phrase “convenient in point of distance” is one of quite indefinite meaning, and often might reasonably be applied to any one of several judges residing in different localities. The statutory restriction serves to put the judge upon his guard, and suggest inquiry into the propriety of his entertaining the proceeding and the good faith of the applicant in coming to him, hut we think it is not a jurisdictional question. If, as is provided in some States, the statute required the matter to be first presented to a judge of the county or district where the plaintiff is restrained, an objection to an application first made elsewhere would raise a very different question; for in such case a territorial limit is clearly and explicitly defined, and no room is left for construction. It has been held, however, in some States that a statutory restriction as to locality in such cases has no application where the writ is sought from the Supreme Court or a justice thereof. People v. Cowles, 59 How. Pr. (N. Y.) 287; Ex Parte Lynn, 19 Tex. App. 120; Ex Parte Kittrel, 20 Ark. 499. Moreover, it is at least an open question whether the jurisdiction of this court for the issuance of the writ may not be invoked independent of statute, under its original and constitutional power “to issue all writs - , and process necessary to secure lustice to . . 0 parties and exercise a supervisory control -1- 1 ^ of inferior judicial tribunals throughout the State.” Constitution Iowa, article 5, section 4. It is a writ of right of very ancient origin, and the preservation of its benefit is a matter of the highest importance to the people. The regulations provided for its employment against an alleged unlawful restraint are not to be construed or applied with overtechnical nicety, and where ambiguous or doubtful should he interpreted liberally to promote the effectiveness of the proceeding. Re Pierce, 44 — 242 — Wis. 411; Simmons v. Georgia Iron & Coal Co., 117 Ga. 305 (43 S. E. 780, 61 L. R. A. 739). In the last cited case, where question was raised whether the particular judge issuing the writ should have entertained the proceeding, it was held that, as the party against whom the writ issued appeared and produced the petitioner and pleaded to the petition, objection to the propriety of the judge’s action should be overruled. The •same principle appears to be affirmed in Broomhead v. Chisolm, 47 Ga. 390; Church on Habeas Corpus, section 156; Re Ross, 3 Practice Rep. (Can.) 301. In the Broomhead case the court, responding to an objection to the jurisdiction, said that whatever might have been the decision had the respondent declined to produce the prisoner it was -unnecessary to consider; for, “having brought him before the judge in obedience to the writ, we are not disposed to scan too critically the mode in which he got there, but hold that, being .there, the'judge had authority to pass such order as the nature of the case demanded.” 3. Same: jurisdiction of supreme court: statutes. The very fact that the habeas corpus statute provides (Code, section 4419) for the original jurisdiction in the Supreme Court suggests, and we think fairly implies, a territorial jurisdiction not restricted to any J J particular locality of the State. It is .not a iocai eourt. Though it sits in Polk County the jurisdiction conferred upon it, whether appellate or original, is co-extensive with the State. The foregoing discussion we think is in strict accord with the long established and practical interpretation which has been put upon the statute in this State. In Ex parte Anderson, 16 Iowa, 595, Judge Dillon, a member of this court, granted a writ of habeas corpus to determine the validity of the detention of a minor in the military service of the United States. In Curley’s case, 34 Iowa, 184, a writ was granted by Cole, justice of this court, and it was held that no appeal was allowable from his decision thereon. In Ex — 243 — parte Tuichner, 69 Iowa, 393, the applicant being confined in the jail of Sac County in pursuance of a judgment of tbe district court, which imposed a fine upon him, but failed to specify the number ' of days be must serve for .its nonpayment, presented a petition to a member of this court for a writ of habeas corpus to test the validity of his imprisonment. The writ was allowed, the case beard by the entire bench, and the prisoner discharged. Probably the most noted case of this nature in our own decisions is Ex parte Holman, 28 Iowa, 88, involving the right to a writ from a state court for the release of certain county officers from the custody of a United States marshal, who held them under a commitment for contempt by a federal court. The writ was issued by Beck, J., who upon bearing in chambers ordered' the release, of the petitioners. The matter was then brought before the full bench in the form of an appeal, both parties waiving and requesting the court not to consider the question whether a right to appeal existed, and on this bearing each of the judges filed an extended opinion, the majority bolding that the prisoners should be remanded to the custody of the marshal. Other writs have been allowed and disposed of by this court, or by members thereof, in cases where no opinion has been filed. The right to issue the writ of habeas corpus, like that to issue the writ of certiorari, is. a very’ appropriate, if not necessary, attribute of an appellate court under our system of government, wbicb administers justice according to the principles of the common law. While it is often and truly said that habeas corpus can not properly be made to serve the office of a writ of error, yet the power . given to the Supreme Court to entertain such proceedings is a branch or phase of its appellate jurisdiction, and furnishes a direct and summary method by which, in the interest of liberty, the power and authority of an inferior court to render a given order or judgment by which a — 244 — citizen is restrained of his liberty may be determined without delay. This view of the nature of habeas corpus proceedings in our court of last resort finds support in numerous precedents. For instance, in Clarke’s case, 100 U. S. 399 (25 L. Ed. 715), the petitioner, being in custody under an alleged illegal process issuing from a trial court, applied to Justice Strong of the Supreme Court of the United States, who allowed the writ, but ordered the hearing to be had before the full bench. Objection being made to the jurisdiction, the court said: It is clear that the writ, whether acted upon by the justice who issued it, or by this court, would in fact require a revision of the action of the circuit court by which the petitioner was committed, and such revision would necessarily be appellate in its character. This appellate character of the proceeding attaches to a large portion of cases in habeas corpus, whether issued by a single judge or by a court. The presence of this feature in the case was no objection to the issue of the writ by the associate justice, and is essential to the jurisdiction of this court. The justice who issued it could undoubtedly have disposed of the case himself, though not, at the time, within his own circuit. A justice of this court can exercise the power of issuing a writ of habeas corpus in any part of the United States where he happens to be. But as the case is one of which this court also has jurisdiction, if the justice who issued the writ found the questions involved to be of great moment .and difficulty, and could postpone the case here for the consideration of the whole court without injury to the petitioner, we see no good reason why he should not have taken this course, as he did. In Re Virginia, 100 U. S. 339 (25 L. Ed. 676), while suggesting in effect that if habeas corpus were to be classed as an original proceeding, there would be doubt of its jurisdiction, the court proceeds to say: “But the appellate power of this court is broader than its original, and generally—that is, in most cases—it may be said that — 245 — the issue of a writ of habeas corpus by us, when it is directed to one of our inferior courts, is an exercise of our appellate jurisdiction.” See, also, Ex parte Hung Hang, 108 U. S. 552 (2 Sup. Ct. 863, 27 L. Ed. 811). In Ex parte Bollman, 4 Cranch, 75-100 (2 L. Ed. 554), Chief Justice Marshall said this jurisdiction of the Supreme Court to entertain habeas corpus proceedings to determine the validity of an order or judgment of imprisonment is “clearly appellate. It is the revision of a decision of an inferior court by which a citizen has been committed to gaol.” The case at bar comes clearly within this definition, and the jurisdiction of this court to enters tain it can not bé doubted. To avoid misapprehension it may he well to add that this conception of the jurisdiction of the Supreme Court in habeas corpus proceedings serves to narrow and limit its exercise to cases which involve a review of the validity of the act, order, or judgment of an inferior court, and that in all cases, where the writ is sought for any other purpose, or to contest any other, disputed right, the allowance of the writ should be ordered by a trial court or a judge thereof. 4. Constitutional law: parole of convicts: abridgment of pardoning power. II. The statute creating the Board of Parole (chapter 192, Laws 32d General Assembly) provides, among other things, that said 'board “shall have power to establish rules and regulations under which it may allow prisoners within the penitentiaries other than prisoners serving life terms to go upon parole outside of the penitentiary buildings, inclosures and appurtenances but to remain while on parole in the custody of the wardens and under the control of the Board of Parole and subject at any time to be taken back and confined within the penitentiary.” That this language standing alone is broad enough to justify the parole in this ease if the law be valid there can be no doubt, but it is asserted by counsel that the statute is unconstitutional, and that in any event — 246 — it contains other terms which render it inapplicable to the petitioner’s case. The constitutional objection is grounded upon the thought that it in some manner trenches upon the power vested in the Governor of the State to grant pardons, reprieves, and commutations. The objection is unsound. The power of the Governor to pardon or reprieve a criminal, or to commute a sentence pronounced by a court, is in no manner abrogated, restricted, or removed by this statute. Whether punishment may be imposed at all, and, if so, its character and extent, is a matter of statute alone; and, if the Legislature in its wisdom concludes it to be sound policy to offer a premium to good conduct and reform in a prisoner by tendering him an amelioration of the rigor of his1 punishment, we are unable to see in what manner this constitutes the slightest interference with the exercise of executive clemency. The Governor does not pronounce sentence. His official cognizance of any judgment imposing punishment for crime extends no further than to inquire whether there be any reason which in his judgment requires or justifies. him in relieving the condemned person in whole or in part from the penalty so imposed. In other words, generally speaking, the exercise of this phase of executive power is called for only when hope for relief for the convict under the ordinary form of law has been exhausted. It may be that the statute in question will serve to decrease the volume of appeals to the Governor for the exercise of his prerogative in this respect, but the power is not diminished simply because the occasion^ for its use may be less frequent. 3. Same: ex post facto law. III. Again, it is said that this statute went into effect July 4, 1907, and to make it apply to persons convicted of offenses committed before that date would render it unconstitutional and void, as being an ex post facto law. An ex post facto law is one which makes criminal and punishable that which was lawful and innocent when done, or a law — 247 — which aggravates a crime and makes it a greater offense than it was when committed, or a law which changes the punishment and makes it greater than was imposed by the law as it stood when the crime was committed. Calder v. Bull, 3 U. S. 386 (1 L. Ed. 648). As the statute now in question does provide in effect that every person convicted of a felony shall stand committed to prison for the maximum term authorized by law, subject to the power of the board to parole him on stated conditions, it is very possible that in the absence of any saving clause a defendant convicted of a felony antedating this statute could properly question the constitutionality of the provision for an indeterminate sentence as applied to him. Whether in any event the objection is one which the prosecution could raise or rely upon is much more doubtful. 6 Am. & Eng. Ency. Law (2d. Ed.) 1090. This statute, however, expressly provides for the imposition of the indeterminate sentence on those only who are convicted of offenses committed after the law came into effect, and for preserving “the rights under the law of all persons that are now or may be hereafter committed to the penitentiary for crimes committed on or prior to July 4, 1907.” So far as this legislation introduces features tending to mitigate the severity of punishment, or to provide for parole (which no prisoner is under obligation or compulsion to accept), it'is not open to any constitutional objection, even though intended to apply to all prisoners without regard to the date of their offenses. There is nothing in the language of the statute, or in the construction put upon it by the petitioner, which renders it obnoxious to the constitutional inhibition of ex post facto legislation. — 248 — 6. Same: parole of prisoners: indeterminate sentence: statutes: construction. — 247 — IV. In view of our conclusions elsewhere stated it is probably unnecessary for us to dwell upon the question whether, upon a proper construction of the act providing for indeterminate sentences and for a board of parole, the latter has authority to parole any prisoner except those — 248 — sentenced under the law in its present form. But a brief reference to its terms and apparent intent is not inappropriate. Counsel for respondent justly interpret this statute (chapter 192, Laws 32d General Assembly) as an attempt to “revolutionize the system of punishment for crime in this State, and as a part of the machinery for working the new system to create a board of parole. The act is a connected whole, and should be so construed. All the sections are part of the system and refer to some feature of the general plan.” But in our judgment this manner of considering the statute leads away from rather than up to the conclusion for which counsel contends. It is a matter of familiar recent history that the adoption of this new scheme of administering penal justice had been for years pressed upon the attention of the Legislature of the State as a very desirable reform. It was not intended so much as an amendment to the old system as the adoption of a new one, framed upon different plans and ideals. It was not intended to apply simply to one prison or to one class of offenders. No reason existed why the several hundred persons then in prison under the old law, and those who might yet be convicted thereunder, should be set apart as one class to whom the new law should have no manner of application, except the reason found in the constitutional restriction above referred to, which pro-’ tected such persons from any increase of the punishment or penalty imposed upon them under the old law. The statute seems to have been carefully drawn with this thought in mind, and to have been made as broad, complete, and comprehensive as was practicable and avoid transgressing this provision of the fundamental law. This was accomplished by a few clauses without which the chapter is barren of any suggestion that its application was not to be as wide as the prison population, without regard to the date of offense or conviction. These clauses — 249 — are as follows: “In section nine the liability to an indeterminate sentence is limited to those convicted of felony committed subsequent to July 4, 1907, and in section nineteen the usual clause repealing all acts and parts of acts inconsistent with the provisions of this chapter is limited to leave in force- prior statutes so far as they relate to persons already convicted thereunder or may thereafter be convicted for crimes committed before said chapter should go into effect.” By way of further caution it is added that: “The' rights under the law of all prisoners that are now or may be hereafter committed to the penitentiary for crimes committed prior to July 4, 1907, are expressly preserved to them.” As we have already suggested, we see no reason why we should read into these limitations anything more than their apparent meaning and purpose to prevent encroachment upon the constitutional rights of prisoners whose offenses antedated the new law. To have that effect it was not necessary to deny the board authority to extend parole to a prisoner whom it might believe deserving, without regard to the date of his offense. The authority given to the board by section 14 is “to establish rules and regulations under which it may allow prisoners within the penitentiaries, other than those serving life terms, to go upon parole outside the penitentiary buildings, inclosures and appurtenances, but to remain while on parole in the legal custody of the wardens and under the control of the Board of Parole and subject at any time to be taken back and confined within the penitentiary.” This authority is as broad as could well be expressed. It is certainly comprehensive enough to include all inmates of the prison except those serving life terms, and we think this scope is not restricted by the exceptions and limitations by which persons under the old law are protected from increase of penalty or punishment. Under this construction of the statute we are constrained to hold that the action of the Board of — 250 — Parole was authorized, and that the order of the district court in disregard thereof can not be sustained. It is therefore hereby ordered and adjudged that the petitioner be remanded to the position and place under the control of the Board of Parole from which he is now restrained by the warden, under the alleged authority of the said second mittimus. — Writ sustained.