Alford v. Hines

224 S.W. 752, 189 Ky. 203, 1920 Ky. LEXIS 402

• Court: Court of Appeals of Kentucky
• Decided: October 5, 1920
• Status: Published

Opinions

Opinion op the Court by

Judge Sampson

Affirming.

Can one convicted of a crime, the punishment of which is fixed by statute at not less than ten nor more than twenty years confinement in the state penitentiary, by mandamus compel the board of charities and corrections for the state of Kentucky to grant him a parole-after he has served eight years, even though the Gl-ovemor has in the way appointed by law commuted the minimum sentence of the prisoner to eight years?

That is the exact question, presented by this appeal.

Clarence Alford was convicted in the Marion circuit court in February, 1912, of the crime of rape and under the indeterminate sentence law, then in force, sentenced by the Marion circuit court to serve a term of not less than ten nor more than twenty years in the penitentiary at Frankfort. Very shortly after receiving the sentence Alford was transferred to the penitentiary at Frankfort and began to serve his term. In March, 1920, the Grovernor commuted the sentence of Alford to from eight to twenty years; thereupon Alford applied to the board empowered to grant paroles for a parole; filed his petition and showed that he had not been guilty of infraction of the rules or regulations of the penitentiary and that he had secured respectable employment with a responsible person with a promise of sufficient compensation to render him self sustaining. His petition for parole was overruled and the parole refused by the board. Alford thereupon brought this action in the Franklin circuit court against the members of the board of charities and corrections of the state of Kentucky, praying that “they and each of them” be required by mandamus to grant the plaintiff a parole and to release him from the state penitentiary at Frankfort. To this petition a general demurrer was filed by the board through the’ attorney general and upon hearing was sustained by the trial court and the plaintiff declining to plead further the petition was dismissed and Alford appeals.

It is the contention of appellant Alford that the commutation by the Governor was a limited pardon and mitigated the punishment inflicted upon appellant to the extent of making the minimum term of the prisoner eight years instead of ten, and rendered him eligible for parole at the ’ expiration of eight years, the time fixed in the commutation, instead of ten years, the time fixed in the judgment of the court, under section 1154, Kentucky Statutes. That statute reads:

“Whoever shall unlawfully carnally know a female of and above twelve years of age, against her will or consent, or by force, or whilst she is insensible, shall be guilty of rape, and punished by confinement in the penitentiary not less than ten nor more- than twenty years or by death, in the discretion of the jury.”

The minimum term of one convicted of the crime of rape under the foregoing statute is ten years. Under the parole act of 1910 as well as all subsequent parole acts of our legislature, no one is eligible to parole until he has served the minimum term of imprisonment provided by law for the crime for which he is convicted. That statute in so far as it affects this case reads:

“No person so confined shall be eligible to parole or entitled to the provisions of this act until he shall have served the minimum term of imprisonment provided by law for the crime for which he was so committed.”

The crime for which Alford was committed to the penitentiary has a minimum term penalty of ten years, and since Alford has served only eight years it is manifest that he was not eligible to parole at the time he instituted this action, unless the commutation granted by the Governor operated to change the minimum term fixed by the statutes from ten years to eight years, set forth in the commutation. This we do not conceive can be done. The Governor had power to commute the sentence or to pardon Alford altogether, but he had and has no power to change the statute, section 1154, so as to in effect make it read, “punished by confinement in the penitentiary for not less than eight nor more than twenty years, or by death.” Since the Governor can not, by pardon or commutation, change the statute, the eligibility of a prisoner to parole convicted under the statutes is not effected and is not perfected because it is not made to depend upon the time to which his sentence may be commuted but entirely and wholly upon the term of imprisonment provided by law for the crime for which he was committed, and as the minimum term in this case was ten years it would not have aided appellant had the Governor commuted his sentence to five years or any other number of years less than ten, because the statute does not make him eligible for parole until he has served the minimum term provided by law for a conviction in such case.

In the case of Rogers v. Board of Prison Commissioners, 161 Ky. 612, we held that a prisoner convicted under the indeterminate sentence law of 1910 must serve the minimum term of imprisonment fixed by law for the crime for which he is convicted before he is eligible to parole. In that case Rogers was sentenced for a term of not less than two nor more than ten years, and when he had served about one year and nine months and was entitled to good time for his good behavior as a prisoner, which would have reduced the two years to about one year and nine months, he instituted his action to obtain a mandamus against the board of prison commissioners to require them to grant him a parole on the ground he had served the minimum term, allowing him for good time. In that case we said:

“But the parole act of 1910 specifically says that 'no person shall be eligible to parole or entitled to the provisions of this act until he shall have served the minimum term of imprisonment provided by law for the crime'for which he was so committed.’

“If it was the legislative intent that there should be deducted from the minimum term provided by law the commutation allowed to persons convicted before the passage of this act, we should expect to find such intent definitely expressed therein. The legislature has not seen fit to make such provision.

“The provisions of section 3801, Kentucky Statutes, had no relation to paroles at the time of the enactment thereof. The statute affected prisoners who were not paroled, by reducing the term of imprisonment for good behavior. It was not a part of chapter 97, Kentucky Statutes, 1909, which was repealed by the parole act of 1910, for the reason that it had no relation to paroles. And while not expressly repealed by the parole act of 1910, it does not affect the right- of* persons convicted under the indeterminate sentence law while the parole act of 1910 was in effect.

“Appellant was sentenced for a minimum term of two years and is not entitled to a parole before the expiration of that time.”

Rogers was not entitled to the parole although with his allowance for good time he had served a term equivalent to two years, because the statute did not make him eligible to parole until he had served the minimum term of imprisonment provided by law for the crime for which he was committed. He was much in the same situation as is Alford in this case, but neither of them was eligible to parole at the time of the commencement of their actions, and the lower court did not err in sustaining'the demurrer of the board of charities and corrections to the petition of Alford and in dismissing his action.

Judgment affirmed.

Chief Justice Carroll dissent- • ing.