The opinion of the court was delivered by: ABRUZZO
This is an application for a writ of habeas corpus for the release of the relator.
The cause or pretense for the imprisonment of the relator is that said relator violated the conditions of his parole from the U.S. Penitentiary at Lewisburg, Pennsylvania.
The material facts herein can be summarized as follows:
The relator was sentenced on June 29, 1938, to serve a term of three years imprisonment, after his conviction of the crime of using the mails to defraud. He commenced service of that sentence on July 23, 1938, in the United States Penitentiary at Lewisburg, Pennsylvania. On November 10, 1940, he was admitted to parole for the remainder of the term of his sentence. Regularly thereafter he reported to his Parole Board in Brooklyn through June of 1942. The full term of his sentence expired on July 20, 1941.
Two days prior to the expiration of this sentence, and on July 18, 1941, the United States Parole Board issued a warrant for the relator's retaking as a parole violator. This warrant remained unexecuted until June 15, 1942, when the relator was arrested and detained at the Federal House of Detention, 427 West Street, New York City.
The warrant in question was issued pursuant to Section 717 of the U.S.C.A., Title 18, which provides:
"§ 717. Same; violation of parole; warrant for retaking prisoner. If the warden of the prison or penitentiary from which said prisoner was paroled or said board of parole or any member thereof shall have reliable information that the prisoner has violated his parole, then said warden, at any time within the term or terms of the prisoner's sentence, may issue his warrant to any officer hereinafter authorized to execute the same, for the retaking of such prisoner. (June 25, 1910, c. 387, § 4, 36 Stat. 820)."
After his arrest and detention, this writ of habeas corpus was issued.
The relator contends that under Section 717 of the Code, a warrant must be issued and executed within the term of the sentence imposed; and that since July 20, 1941, was the expiration date of his sentence, the warrant herein could not be legally executed. It is conceded that the warrant was not executed within the said period of time.
This point has not been ruled upon directly and authority for or against the issue raised must be gleaned from decisions interpreting the statute.
Section 717 pertains to the method of retaking a parolee, while Section 719 states the provisions to be carried out when parole is revoked and terminated. It reads: "If such order of parole shall be revoked and the parole so terminated, the said prisoner shall serve the remainder of the sentence originally imposed; and the time the prisoner was out on parole shall not be taken into account to diminish the time for which he was sentenced. As amended May 13, 1930, c. 255, § 1, 46 Stat. 272; June 29, 1940, c. 449, § 3, 54 Stat. 692."
It is not the province of this Court to inquire into whether or not the terms or conditions of the parole were violated by this relator under Section 719.
The parole of a prisoner by the Board of Parole is not a suspension of the sentence but merely substitutes for confinement in the penitentiary confinement within the bounds specified by his parole outside of the penitentiary, still subject to the legal custody of the warden. But the prisoner is not free of his sentence while he is out of the prison under the ...