Opinion
March 29, 1968.
Appeal from the Circuit Court, Lyon County, Ira D. Smith, J.
Oliver T. Minch, pro se.
Allen Prewitt, Jr., Frankfort, for appellant.
Robert Matthews, Atty. Gen., George T. Rabe, Asst. Atty. Gen., Frankfort, for appellee.
This is an appeal from a judgment dismissing appellant's petition for a writ of habeas corpus.
While appellant was on parole from a prison sentence in Kentucky he was arrested in Indiana on a charge of breach of peace. A parole violation warrant was delivered to the Indiana authorities and he was held there awaiting transfer to Kentucky. He attempted to escape from jail and the Kentucky parole violation warrant was "released" so that he could be tried in Indiana on the attempted jail breaking charge. He was convicted and served a sentence in Indiana. Upon his return to Kentucky he was sent to the penitentiary for violating his parole.
It is appellant's contention that when Kentucky "released" him to the Indiana authorities it thereby waived its right to recommit him for violation of his parole, relying on Thomas v. Schumaker, Ky., 360 S.W.2d 215, and cases cited therein. His argument is answered in Chick v. Commonwealth, Ky., 405 S.W.2d 14. The principle upon which he relies may be invoked only when a person found in this state is in its legal custody. At the time of the proceedings here pertinent appellant was not in Kentucky but was in Indiana. Kentucky did not have him in custody and therefore waived none of its rights to proceed further against him.
The judgment is affirmed.
WILLIAMS, C.J., and EDWARD P. HILL, MILLIKEN, MONTGOMERY, PALMORE and STEINFELD, JJ., concur.
OSBORNE, J., concurs in the result on the ground that Thomas v. Schumaker, Ky., 360 S.W.2d 215, should be overruled.