Pittsburgh, Pennsylvania, to secure the waiver.
He was not inducted into the Army since the waiver was withdrawn, but he enlisted in the Navy. To answer the charges in Ohio it was necessary to extradite him from the Great Lakes Training Center in the state of Illinois.
On November 1, 1944, while an inmate of the Ohio State Penitentiary, the petitioner endeavored to secure withdrawal of the detainer lodged against him by the Pennsylvania authorities in order that he could be inducted into the armed forces. On November 16, 1944, the Pennsylvania Board of Parole voted not to lift the detainer.
On November 21, 1947 the Ohio authorities notified the Parole Board in Pennsylvania the petitioner would be paroled in Ohio January 5, 1948. He was taken into custody by a parole officer from Pennsylvania on said date. On January 29, 1948, the Parole Board of the Commonwealth of Pennsylvania issued an order of recommitment to the Western State Penitentiary, with the new maximum sentence to expire on October 17, 1951. The order of recommitment was merely conformity of the Board's action to return which was taken December 28, 1943. It is issued primarily for the records of the institution and the petitioner was fully informed and well aware of the reasons for his return.
The authorities in the state of Pennsylvania had the right and authority to file the detainer for the custody of the petitioner as a parole violator when he completed his sentence in Ohio or at such time as he was released on parole by the Ohio authorities. In addition thereto the Pennsylvania authorities had no right to demand the custody of the parole violator for the offense committed during his parole in the state of Ohio without the consent of the authorities in that state until discharged from imprisonment or his release on parole by the Ohio authorities for the offense committed in Ohio. The Act of June 25, 1937, P.L. 2086, Paragraphs 1 and 2, 61 Penna.Purdon's Statutes, §§ 321, 322.
The Parole Agreement executed by the petitioner on December 23, 1941 provided, inter alia, as follows: 'Under the provisions of the Parole Law, the sentence of a prisoner in a penitentiary is commuted by releasing him on parole until the expiration of the maximum limit of his sentence, subject to the following condition: that if any prisoner so released, shall during the period of his parole or while delinquent on said parole, commit any crime punishable by imprisonment for which he is at any time thereafter convicted in any Court of record and sentenced to any place of confinement other than the penitentiary from which he was released on parole, such prisoner shall in addition to the penalty imposed for such crime committed during the said period and after expiration of the same, be compelled by detainer and remand, as for an escape, to serve in the penitentiary from which he had been released on parole or in any other institution to which he may be legally transferred, the remainder of the term (without commutation) which he would have been compelled to serve but for the commutation authorizing said parole; and also subject to compliance with the other provisions of the Parole Law and the terms, rules and conditions prescribed by the Board of Pardons and upon which the parole was recommended.'
The legislature in the Commonwealth of Pennsylvania has provided, inter alia, that any convict released on parole who shall, during the period of his parole, commit any crime punishable by imprisonment for which he is at any time thereafter convicted in any court of record, and sentenced to any place of confinement other than a penitentiary from which he was released on parole, such convict shall, in addition to the penalty imposed for such crime committed during the said period, and after the expiration of the same, be compelled, by detainer and remand as for an escape, to serve in a penitentiary from which said convict had been released on parole, or in any other institution to which he may be legally transferred, the remainder of the term (without commutation) which such convict would have been compelled to serve but for the commutation authorizing said parole. 61 Penna.Purdon's Statutes, § 305; 61 Penna.Purdon's Statutes, § 131.21.
The law of the Commonwealth of Pennsylvania also provides, inter alia, that whenever it shall appear that a person who has been sentenced and released on parole by commutation containing a condition that the convict shall be subject to the terms of the Act under which he has been paroled, has violated the terms of his parole, a warrant shall be issued for the arrest of said person, which warrant shall give all field parole agents of the departments of justice and officers authorized by law to make arrest full authority to apprehend and detain said convict. 61 Penna.Purdon's Statutes, § 309; 61 Penna.Purdon's Statutes, § 331.23.
The jurisdiction of the Pennsylvania parole authorities to recommit the petitioner as a parole violator did not expire on October 5, 1945 for the reason that the parole was violated on December 9, 1943.
The time that the petitioner was out on parole is not to be regarded as imprisonment, to be credited on his sentence when he is recommitted for commission of a crime while out on such parole. Commonwealth ex rel. O'Leary v. Ashe, 152 Pa.Super. 322, 32 A.2d 36; Anderson v. Corall, 263 U.S. 193, 44 S. Ct. 43, 68 L. Ed. 247.
The petitioner has exercised every scheme and plan a person of his mentality might be able to conceive in an effort to perpetrate a fraud upon the parole authorities in the Commonwealth of Pennsylvania. This proceeding is a most glaring example of an inmate in a state institution who absolutely has not been denied any rights given to him by the Constitution of the United States, or the laws of the Commonwealth of Pennsylvania, and who through one source or the other has been advised by some person or persons in the institution where he is confined that the filing of a petition for a writ of habeas corpus would work to his advantage. The actions of this petitioner have caused considerable expense to the United States, the Commonwealth of Pennsylvania, the State of Ohio, and to the County of Butler, Pennsylvania, which is extremely unfortunate. However, consideration must be given to all petitions for writ of habeas corpus in order to make positive that no person is deprived of his liberty without due process of law.
This is not a case such as would justify or require the federal courts to interfere with the administration of justice of the state courts and discharge the petitioner through a habeas corpus proceeding. Ex parte Hawk, 321 U.S. 114, 64 S. Ct. 448, 88 L. Ed. 572.
The rule issued on the 14th day of July, 1949 to show cause why the petition for writ of habeas corpus should not be granted is dismissed.
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