Owen v. Smith , 89 Neb. 596 ( 1911 )

Fawcett, J.

Appellant, John C. Owen, filed in the district court for Lancaster county his petition for a writ of habeas corpus. The petition alleges that on May 1, 1909, appellant, after having been convicted of assault with intent to commit great bodily injury, was sentenced to a term of five years in the state penitentiary; that on May i, 1909, he was delivered to the warden of said penitentiary; that on September 9, 1910, appellant received from Ashton C. Shallenberger, the then governor of Nebraska, a parole, a copy of which is attached to and made a part of appellant’s petition; that on October 11, 1910, the said Ashton C. Shallenberger, who was then still governor, “did unlawfully, wrongfully and without authority, and without, any complaint having been made charging'your petitioner with the violation of any of the parole agreements, and without giving this petitioner a hearing, did revoke the said parole and order your petitioner to be returned to the state penitentiary of the state of Nebraska, from which he had been paroled as heretofore set out;” that on October 12, 1910,, appellee “T. W. Smith, the warden of the Nebraska state penitentiary, to whom the executive order of October 11 was directed,” caused appellant to be reconfined and imprisoned in said penitentiary, where, it is alleged, he “is now unlawfully, wrongfully and without authority so deprived of his liberty.” Upon a hearing in the district court, the application for a writ of habeas corpus was denied, the' action dismissed, and appellant remanded to the custody of the warden of the state penitentiary. From such judgment this appeal is prosecuted.

The only question to be considered is whether the governor after having granted a parole to a convict, may, without notice and hearing, revoke such parole and order the convict to be apprehended and reimprisoned for the remainder of his term of imprisonment. Appellant cites some authorities from other states which at first blush •seem to sustain his contention; but an examination of those cases discloses the fact that they are based upon statutes essentially different from ours. As opposed to the cases cited by appellant, the attorney general has cited authorities based upon statutes similar to ours, which amply sustain the action of the governor. We do not deem it necessary to consider any of these cases, for the reason that we think the judgment of the district court must be affirmed under the very terms of the parole itself, and of section 570 of the criminal code, under which the governor acted. The parole issued by Governor Shallenberger, after setting out certain conditions to be observed by the convict while at liberty, concludes thus: “6. He shall, while on parole, remain in the legal custody and under the control of the Governor of the State of Nebraska. 7. He shall be liable to be retaken and again confined within the inclosure of the state penitentiary for any reason or reasons that shall be satisfactory to the governor, and at his sole discretion, until he receives a copy of his final discharge through the warden.”

Section 570 of the criminal code provides: “That the governor shall have power in the case of any prisoner, who is now, or hereafter may be imprisoned in the state penitentiary under a sentence other than murder in the first or second degree, who may have served the minimum term provided by law for the crime for which he was convicted (and who has not previously been convicted of felony and served.a term in any penal institution within the United States of America), * * * to allow any such, prisoner to go upon parole, outside of the inclosure of said penitentiary, to remain while on parole, within the state under the control and in the legal custody of the governor, and subject at any time to be taken back within the inclosure of said institution; and full power to retake and reimprison any convict so upon parole is hereby conferred upon the governor, whose written order shall be a sufficient warrant for all officers named therein, to authorize such officers to return to actual custody any conditionally released or paroled prisoner; and it is hereby made the duty of all officers to execute said order the same as ordinary criminal process.”

We think it is clear that under the terms of this section of our code, and under the terms of the parole itself, the governor acted clearly within his lawful powers; that he was not required to give any notice of his intention to revoke the parole of appellant, nor grant appellant any hearing before revoking the same. Any other construction of the law would not be a kindness to the inmates of the penitentiary; for, if the governor is given to understand that every time he grants a parole he thereby restores the convict to full citizenship to such an extent that he cannot revoke such parole except upon notice and a full hearing, he would be very loath to exercise the humane prerogative which the code now confers upon him. We think the provisions of the code were properly construed by the district court. Appellant was at all times, while on parole, in the legal custody of the governor, and subject at any time, for any reason or reasons that should be satisfactory to the governor, and at Ms sole discretion, to be reimprisoned. He accepted a parole containing the conditions prescribed by law and must abide by them.

The judgment of the district court is

Affirmed.