Opinion
No. 29,029.
Filed January 18, 1954. Rehearing denied April 1, 1954.
1. CRIMINAL LAW — Habeas Corpus — Sentence — Discharge — Parole Violation — Statutes. — Where appellee was sentenced on two charges, and was paroled, and while on parole was convicted on another charge, and upon being delivered to prison, was found to be a parole violator by board of trustees, and was required to serve 5 years on original sentences and upon expiration thereof was then discharged and given a new prison number and started to serve sentence imposed while on parole, he was not entitled to be released on habeas corpus since while on parole he was sentenced anew within meaning of Section 9-2250, Burns' 1942 Replacement. p. 210.
2. CRIMINAL LAW — Habeas Corpus — Sentence — When Begins to Run — Parole Violation — Statute. — Section 9-2250, Burns' 1942 Replacement is not of doubtful import and is a special and particular provision creating an exception to Section 13-210, Burns' 1942 Replacement which is general in its application and the general statute will apply only where the specific statute is inapplicable. p. 211.
3. CRIMINAL LAW — Sentence — Imposition — Indeterminate Sentence. — In the absence of statute to the contrary, the time when a term of imprisonment is to begin to run does not need to be specified since the essential part of judgment of conviction is punishment and amount thereof, without reference to time when it shall be executed. p. 211.
4. CRIMINAL LAW — Sentence — Prison Board — Administrative Law and Procedure — Discretionary Power — Courts. — The terms of a sentence must be read, construed and executed in light of statutory provisions and when law fixed time of commencement of sentence as of time when former liability on other sentences was terminated and termination was a matter within discretion of board of trustees, the courts have no power to shorten a prisoner's period of service under the indeterminate sentence law. The discretionary power of board of trustees is not subject to control or supervision by the courts. p. 211.
5. STATUTES — Criminal Law — Sentences — Commencement of Term. — Section 9-2250, Burns' 1942 Replacement is mandatory and self-executing and operated to postpone execution of sentence until other sentences have been served or annulled. p. 212.
6. CRIMINAL LAW — Sentences — Prison Board — Statute. — The legislature could not increase term of imprisonment assessed, and where board of trustees determined appellee had served sufficient time under former sentences, it shortened period of service imposed by the courts, and Section 9-2250, Burns' 1942 Replacement postponed the date for commencement of term on sentence imposed for crime committed while appellee was on parole, and the legislature furnished law which would operate automatically under certain conditions and appellee furnished the conditions upon which law operated and he cannot complain. p. 212.
From the LaPorte Circuit Court, Alban M. Smith, Judge.
Charles S. Basham was convicted on two charges and sentenced to Indiana Reformatory. He was paroled and while on parole, commited another crime and was sentenced. Upon commitment, Board of Trustees held hearing and found appellee to be parole violator, requiring him to serve five years of original sentences and then after this period discharged him on original sentences and gave him a new number and then required him to start serving sentence imposed while he was on parole. He filed petition for writ of habeas corpus which was granted and state appeals.
Reversed.
Edwin K. Steers, Attorney General, and Carl M. Franceschini, Deputy Attorney General, for appellant.
J. Chester Allen and Allen Allen, of South Bend, for appellee.
This is an appeal from a judgment granting a writ of habeas corpus.
Appellee was convicted in the St. Joseph Circuit Court on July 23, 1941, and sentenced to serve not less than two nor more than fourteen years on one charge and not less than two nor more than twenty-one years on another charge. These sentences ran concurrently and were to be served in the Indiana Reformatory. On October 10, 1947, while out on parole from said sentences, appellee was convicted of second degree burglary in the St. Joseph Circuit Court and was sentenced to the Indiana State Prison for a term of two to five years.
On being delivered to the Indiana State Prison on October 13, 1947, appellee was declared to be a parole violator and after a hearing before the board of trustees of said prison acting as a porale board, was required to serve five years of the original sentences. He was discharged from these on June 23, 1952, given a new prison number and started to serve the sentence of two to five years which was imposed on October 10, 1947.
Appellee's petition for writ of habeas corpus was filed on October 22, 1952. It is his contention that on October 10, 1952, he had completed serving his full maximum sentence for second degree burglary and he was therefore entitled to discharge on that date. The answer depends upon whether he started to serve the burglary sentence on October 10, 1947, or on June 23, 1952.
At the time the appellee was sentenced to the Indiana State Prison on October 10, 1947, there was in full force and effect in Indiana the following statutes: Acts 1857, ch. 56, § 6, 1. being Burns' 1942 Repl., § 13-210 which reads in part as follows:
". . . The term of service and imprisonment of every convict shall commence from the day of his conviction and sentence."
Acts 1947, ch. 61, § 1, being Burns' 1942 Repl., 1953 Supp., § 9-2250 which reads as follows:
"Any prisoner who has been sentenced and committed to the Indiana State Prison, Indiana Women's Prison or the Indiana Reformatory, and has been released upon parole therefrom and while at large upon such parole said prisoner shall commit another crime and upon conviction thereof shall be sentenced anew to one of the institutions named herein, said prisoner shall be subject to serve the second sentence after the first sentence is served or annulled, and the second sentence is to commence from the termination of his or her liability, upon the first or former sentence."
Although the appellee was first sentenced to the Reformatory, it is clear that when he was sentenced on October 10, 1947, to the State Prison he was sentenced "anew" within the meaning and intent of § 9-2250, supra.
Sec. 9-2250, supra, is not of doubtful import. It applies in this case. It is a special and particular provision which creates an exception to the generality of § 13-210, supra. Sec. 2. 9-2250 deals with a specific part of the general subject covered by § 13-210, and as a result § 13-210, the general, will apply only where § 9-2250, the specific, is inapplicable. Kingan Co. v. Ossam (1921), 190 Ind. 554, 131 N.E. 81; Detrich v. Howard (1946), Cir. Ct. of Appeals, 7th Cir., 155 F.2d 307; Callahan v. United States (1941), U.S. Ct. of Appeals for the Dist. of Columbia, 122 F.2d 216; 82 C.J.S., Statutes, § 347b.
In sentencing the appellee on October 10, 1947, the court complied with the provisions of Burns' 1942 Repl., § 9-1820, which has to do with the imposition of indeterminate 3. sentences for felonies. No reference was made to appellee's status as a parole violator, and no attempt was made to fix the time when the sentence of two to five years was to begin to run. In the absence of a statute to the contrary, the time when a term of imprisonment is to begin need not, and we think should not, be specified in the sentence. "The essential part of the judgment of conviction is the punishment, and the amount thereof, without reference to the time when it shall be executed." Brooke v. State (1930), 99 Fla. 1275, 128 So. 814, 69 A.L.R. 1173, Anno., 1177; 24 C.J.S., Criminal Law, § 1581b and cases cited.
The terms of a sentence must be read, construed, and executed in the light of applicable statutory provisions. In the situation presented here the law fixed the time when appellee's 4. service of the sentence pronounced on October 10, 1947, should begin to run. It fixed that time as the date upon which the appellee's liability upon the former sentences terminated. The punishment adjudged by the court under the earlier sentences was for the maximum term prescribed by the statute. The earlier termination of it was a matter within the discretion of the board of trustees, and the discretion of the board in that respect is not subject to the control or supervision of the courts. The power to shorten a prisoner's period of service under an indeterminate sentence is not judicial. It is a ministerial or administrative power with which the court has no concern. Miller v. The State (1898), 149 Ind. 607, 49 N.E. 894, 40 L.R.A. 109; Terry v. Byers (1903), 161 Ind. 360, 68 N.E. 596; State v. Page (1899), 60 Kan. 664, 57 P. 514.
Sec. 9-2250, supra, is mandatory and self executing. It operated to postpone the execution of the sentence for second degree burglary until the other sentences had been served 5. or annulled. Canfield v. Commissioner of Pardons and Paroles (1937), 280 Mich. 305, 273 N.W. 578; People ex rel. v. Twombly (1920), 228 N.Y. 33, 126 N.E. 255; Commonwealth v. Burke (1950), 166 Pa. Super. 194, 70 A.2d 663; Wears v. Hudspeth (1949), 167 Kan. 191, 205 P.2d 1188; Ex Parte Green (1929), 322 Mo. 857, 17 S.W.2d 939; Lee v. Gilvan (1921), 287 Mo. 231, 229 S.W. 1045.
The legislature could not increase the term of imprisonment as assessed by the court, Kunkel, Warden v. Moneyhon (1938), 214 Ind. 606, 17 N.E.2d 82, nor did it undertake to do so. 6. When the board determined that the appellee should be discharged from further confinement under the earlier sentences on June 23, 1952, it shortened appellee's period of service as imposed by the courts. It did not extend it. The legislature could and did postpone the date upon which the appellee would begin to serve the sentence imposed for the crime he committed while at large on parole until the earlier sentences were served or annulled. The appellee clearly falls within the provisions of § 9-2250. The legislature furnished a law which would operate automatically under certain conditions. The appellee furnished the conditions upon which the law operated, and he has no just cause for complaint.
The appellee asserts that § 9-2250 is unconstitutional in several respects. Some have been disposed of by our construction of § 9-2250. Others have not been supported by reason or authority and they must therefore be deemed waived under Rule 2-17(f).
We hold that the sentence imposed on October 10, 1947, began to run on June 23, 1952, the date of appellee's discharge from the previous sentences, and the court below therefore erred in ordering his release on writ of habeas corpus.
Judgment reversed and cause remanded with instructions to deny the writ.
NOTE. — Reported in 116 N.E.2d 632.