Ex parte Butler

Ex parte Butler
1928 OK CR 272
269 P. 786
40 Okl.Cr. 434
Decided: 08/25/1928
Oklahoma Court of Criminal Appeals

(Syllabus.)

1. Pardon Governor's Power to Grant and Revoke Paroles. Under the constitutional provision conferring the pardoning power upon the Governor (Const. art. 6, § 10), the Governor has exclusive power to parole a convict, with such restrictions and limitations as he may deem proper, and, upon a violation by such convict of the terms and conditions of his parole, the Governor has power to revoke the parole, and direct that such convict be rearrested and returned to custody and required to serve out the unexpired part of the sentence of the court, as though no parol had been granted, even after the time his sentence would have ended but for the suspension thereof by the parole.

2. Same Power to Order Paroled Convict to Be Remanded to Prison Without Notice or Opportunity to Be Heard. A convict was granted and accepted a parole which expressly provided that the Governor might revoke the same and remand the party to prison for a violation of the conditions, or "for any other reason by him deemed sufficient." Held, that the Governor may order the convict to be so remanded without notice to him, and without giving him an opportunity to be heard.

Original application by J.J. Butler for a writ of habeas corpus. Writ denied.

T.D. Taylor, for petitioner.

Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for respondent.

DOYLE, P.J. On behalf of J.J. Butler a duly verified petition for writ of habeas corpus was filed in this court on June 16, 1928. Attached thereto and

Page 435

made a part thereof is a stipulation and an agreed statement of facts from which it appears: That petitioner, J.J. Butler, was convicted in the district court of Bryan county of the crime of adultery, and was sentenced on August 29, 1913, to imprisonment in the penitentiary for a term of 18 months. That thereafter, on March 19, 1914, he was paroled by Governor Cruce. That thereafter, on June 1, 1926, the said petitioner, J.J. Butler, was tried and convicted for the crime of driving an automobile while intoxicated. He was sentenced to pay a fine of $500 and to imprisonment in the penitentiary for a term of one year. That on May 11, 1928, the said parole, issued by Governor Cruce, was revoked by Governor Johnston. That "on June 7, 1928, the term of the second imprisonment was up, and the said J.J. Butler was recommitted upon his first sentence."

It is averred in the petition "that said imprisonment is illegal, for the reason that the Governor of the state of Oklahoma had no legal right to revoke the parole after the term for which your petitioner was convicted."

In Ex parte Ridley, 3 Okla. Cr. 350, 106 P. 549, 26 L.R.A. (N.S.) 110, it is said:

"When a convict has been released upon a parole, his rearrest and return to custody by an executive order revoking the parole is not in violation of the constitutional guaranty `that no person shall be deprived of his liberty without due process of law' or `that no warrant shall issue but upon probable cause supported by oath or affirmation,' since, being a convict at large by executive clemency, which he has accepted on conditions included therein, upon the violation of any of such conditions he is merely an escaped convict, and not entitled to invoke such constitutional guaranty."

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In Ex parte Horine, 11 Okla. Cr. 517, 148 P. 825, L.R.A. 1915F, 548, it is held:

"An executive order revoking a parole and directing the rearrest and return to custody of the convict without giving him an opportunity to be heard, is not violative of the constitutional guaranties that no person shall be deprived of his liberty without due process of law, and `that no warrant shall issue but upon probable cause, supported by oath or affirmation,' since being a convict at large by executive clemency, which he has accepted on the conditions therein stated, the legal status of the convict upon the revocation of the parole becomes the same as it was before the parole was granted."

The parole granted petitioner was an act of grace or favor upon the part of the state by its chief executive. Petitioner was free to accept the parole with its conditions, or reject it and serve his sentence. He chose the former, and stipulated that, for a violation of the conditions, or for any other reason deemed sufficient, the parole might be summarily revoked by the Governor, and petitioner should be remanded to the penitentiary to serve out the sentence. Upon its revocation, the legal status of the petitioner should be regarded the same as it was before the parole was granted and accepted.

Upon the undisputed facts and for the reasons stated we are of the opinion that the detention of petitioner is warranted under the conditions of the parole by which he secured his release from imprisonment.