Opinion
Nos. 31902 and 31903
Decided February 1, 1950.
Criminal law — Habeas corpus — Petitioner not discharged from custody of warden of penitentiary — Warrant by sending state to retake parolee from receiving state — Uniform Act for Out-of-State Parolee Supervision — Section 108-1 et seq., General Code — Sending state to determine whether prisoner served maximum term — Writ not issued to prohibit compliance with warrant for retaking.
APPEALS from the Court of Appeals for Franklin county.
These two appeals are in this court from judgments in the Court of Appeals denying John Gabriel Nagy a writ of prohibition and refusing to discharge him from custody through habeas corpus.
It was agreed by counsel in the Court of Appeals that the evidence and stipulation in the one proceeding in that court should be considered as applying to the other.
The petition for a writ of habeas corpus states that Nagy is unlawfully restrained of his liberty by the warden of the Ohio penitentiary and prays that the petitioner be discharged from such illegal restraint. It appears from the evidence that in May 1945 Nagy was charged with theft of an automobile and on November 1, 1945, he was sentenced by the Court of Common Pleas of Cuyahoga County to serve one to 20 years in the Ohio penitentiary. All judges of the Court of Appeals approved a journal entry which recites that the evidence failed to sustain the allegations of the habeas corpus petition and ordered the petitioner remanded to the custody of the warden to remain in the penitentiary until the expiration of petitioner's sentence or until he shall be otherwise released according to law.
The petition in prohibition states that the petitioner is an inmate of the Ohio penitentiary; that on April 27, 1945, the "Board of Parole of New York State" issued a purported "warrant for retaking paroled prisoner" by virtue of which the state of New York seeks to take custody of the petitioner for a purported violation of "parole for an offense" committed in New York state in 1929, for which he was sentenced to Elmira reformatory in that state in 1930; that the 1930 conviction and sentence in New York were void for want of jurisdiction of the court; that under such void conviction and sentence he has served more than the full term of such sentence; that the Ohio Pardon and Parole Commission granted him a parole to become effective on March 23, 1949; that, on the face of the records in the hands of the warden of the Ohio penitentiary, it clearly appears the "New York Parole Board" has no valid right or claim for the person of the petitioner, he is entitled to be released under the parole granted him by the Ohio parole commission and the warden has no authority to turn over the petitioner to the authorities of New York state.
The prayer of the petition is for a writ prohibiting the warden from delivering the petitioner to the authorities of New York state and from further detaining him under the warrant for retaking.
The Ohio parole, referred to in the prohibition petition, was "to other authorities March 23, 1949, when arranged by the bureau of probation parole, that is, notify New York authorities."
Miss Cecile J. Shapiro, for appellant.
Mr. Herbert S. Duffy, attorney general, and Mr. Alan E. Schwarzwalder, for appellee.
The judgment of the Court of Appeals for Franklin county in the habeas corpus proceeding, which is cause No. 31903 in this court, is affirmed. There is nothing in the record to sustain a claim of illegal restraint under the sentence imposed on November 1, 1945, by the Court of Common Pleas of Cuyahoga County.
The judgment of the Court of Appeals in the prohibition proceeding, which is cause No. 31902 in this court, is also affirmed.
In the brief for Nagy it is stated: "The chief question of fact involved * * * is whether or not the maximum term of sentence imposed upon the petitioner in New York state in 1930 on the charge of third degree burglary was completely run." His counsel contends that "almost one year before March 1944 he had served out his entire sentence under the New York conviction, and therefore was not a parolee at all when the warrant for retaking was issued in April 1945. For that reason, New York state is not entitled to his custody."
There is a conflict in the evidence as to whether Nagy has served a maximum term under the New York sentence, considering his probation periods, violations of paroles, subsequent convictions and incarcerations.
It appears from the record and not disputed that on February 10, 1943, the New York authorities released Nagy on parole to the state of Ohio under the Uniform Act for Out-of-State Parolee Supervision, which act is Section 108-1 et seq., General Code.
Section 108-1, General Code, in part, provides:
"(3) That duly accredited officers of a sending state may at all times enter a receiving state and there apprehend and retake any person on probation or parole. For that purpose no formalities will be required other than establishing the authority of the officer and the identity of the person to be retaken. All legal requirements to obtain extradition of fugitives from justice are hereby expressly waived on the part of states party hereto, as to such persons. The decision of the sending state to retake a person on probation or parole shall be conclusive upon and not reviewable within the receiving state: provided, however, that if at the time when a state seeks to retake a probationer or parolee there should be pending against him within the receiving state any criminal charge, or he should be suspected of having committed within such state a criminal offense, he shall not be retaken without the consent of the receiving state until discharged from prosecution or from imprisonment for such offense." (Italics supplied.)
This court is in accord with the majority of the judges of the Court of Appeals in this case "that the contention of the petitioner that he is not a parole violator is such as must be decided by the state of New York, and is not subject to review in Ohio"; that "Section 108-1 et seq. clearly deprives the courts of this state of jurisdiction to inquire into the matters set forth in the warrant for retaking"; and that a writ should not issue to prohibit the warden from complying with or honoring the warrant for retaking.
Judgments affirmed.
WEYGANDT, C.J., MATTHIAS, HART, ZIMMERMAN, STEWART, TURNER and TAFT, JJ., concur.