Grace v. State , 139 Mont. 643 ( 1961 )

PER CURIAM.

Petition for writ of habeas corpus by Raymond Grace, an inmate of the Montana State Prison, appearing pro se.

Petitioner on April 19, 1957, was sentenced to a term of fifteen years by the District Court of Lewis and Clark County. He escaped from the prison on November 4, 1958, was apprehended and returned. Thereafter he was tried before a jury on an escape charge, found guilty and sentenced to a term of one year. On January 24, 1961, he was paroled to his escape sentence. He was thereafter paroled outside the confines of the prison on June 28, 1961. Thereafter he was returned to the prison, apparently by reason of a violation of the terms of his parole.

Petitioner makes two contentions. He alleges his parole papers issued in June of 1961 referred only to his one-year escape sentence and contained nothings whatsoever with reference to his fifteen year term. By reason of this fact it is his contention that he only had to complete the one-year sentence on parole and not the fifteen year sentence.

We discussed like situations in the cases of State ex rel. Herman v. Powell and State ex rel. Roy v. Powell, both reported in 139 Mont. 583, 367 P.2d 553. What is said there applies with equal force here and for those reasons there is no merit in this contention.

Petitioner’s other contention is that he was convicted on the escape charge by a jury of only eleven persons. Nothing would be served by a discussion of this point. Since the petitioner commenced serving his one-year escape sentence on January 24, 1961, it will be completed on January 24, 1962, but a few weeks away. By reason of our holding in the Herman and Roy cases, supra, petitioner is still subject to completion of his fifteen year sentence and even were a writ of habeas corpus granted, it would not result in his release from prison and would be but an idle act.

For these reasons the writ is denied.

MR. JUSTICE JOHN C. HARRISON, being disqualified, took no part in this decision.