People ex rel. Kohler v. Kidney

Headnote

People ex rel. Kohler v. Kidney, 183 -App. Div.-, affirmed.

Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered March 27, 1918, which affirmed an order of Special Term sustaining a writ of habeas corpus and discharging the relator from custody. The relator was sentenced in 1909 to not more than four years in a state prison and thereafter paroled, there remaining two years, nine months and twenty-eight days of his maximum sentence unserved. Within four months after his parole he was again, sentenced for crime and served something over two years. Three months after termination of his second sentence he was again sentenced to state prison for another term which he duly served. It was not discovered that he was an inmate who had violated a parole until after he was returned to prison for the third time. The parole board thereupon declared him delinquent and he was thereafter brought before it and examined. The defendant • warden now seeks to hold him for the unserved balance of his first .sentence. On habeas corpus the Special Term held that the declaration of the relator’s delinquency upon his parole was unauthorized since he was never arrested by virtue of a parole warrant as

required by section 217 of the Prison Law. Further, that when brought before the prison board his maximum sentence under the original charge had expired and, therefore, all authority over him as a paroled prisoner had ended.