Jasper County Democrat, Volume 11, Number 73, Rensselaer, Jasper County, 13 February 1909 — STILL IN PRISON [ARTICLE]

STILL IN PRISON

Warden Reid Takes Issue With Attorney-General SAYS “GOOD TIME” DOESN’T APPLY To Indeterminate Sentence Law Latter Says It’s SUU In Force But Until Settled in Some Way, Tom McCoy Must Remain In the Penitentiary. '

The report sent out from Michigan City Saturday night that Tom McCoy had been released from the penitentiary, was a little previous, as the following from the Michigan City News shows:

Thomas J. McCoy, the Rensselaer bank wrecker, is still an inmate of the state prison in this city, despite the fact that reports to the contrary appeared in state papers on iast Saturday. It seems that a misunder-. standing of the law existed in the minds of McCoy’s lawyers who made the discovery which brought out the announcement that McCoy was entitled to his freedom. Governor Marshall last week addressed the following letter to Warden J. D. Reid:

“I have presented the question as to whether the law of 1883 denominated the law for the diminution of time had been repealed by the indeterminate act either expressly or by implication of law. I have now on file in this office the opinion of the attorney general to the effect that the law of 1883 was not repealed either directly or by implication of law in the passage of the indeterminate sentence law. “It is therefore the ruling in this department that any prisoner who has made good time and who has served the maximum of his sentence less such good time is entitled to be discharged in accordance with the law of 1883. Therefore if you have any prisoners who have no infractions of the rules or regulations of your prisons or the laws of the state regarded against them, and who have performed in a faithful manner the duties assigned them so. as to be entitled to dimunition of sentence in in accordance with such law and such dimunltion of sentence has now reduced the maximum period of sentence so as to entitle such prisoner to discharge, you are hereby authorized to discharge such prisoner. "This ruling of the attorney general, as I am informed applies to the case of Thomas J. McCoy.” The News has ascertained that the supreme court rendered a decision on December 30, 1898, to the effect that the indeterminate sentence law simply substituted a new and different method of creating good time to the convict. The good time law applies to those sentences under the indeterminate sentence law or reformatory act prior to April 1, 1897, if they have earned good time. Those sentenced since April 1, 1897, are not entitled to good time. As McCoy was sentenced June 19,1906, he would not, under the court’s ruling, be entitled to the good time. If McCoy benefltted the prison would lose a number of convicts on the same grounds. Attorney General Holds His Former Opinion. Thursday morning’# Indiaimpolls Star had the following: \ Attorney General Bingham In a long opinion sent to Governor Marshall yesterday afternoon, clings to the views he gave the Governor several days ago regarding the Thomas J. McCoy case, a question that has been raised by the attorneys for McCoy asking that he be released from prison under the “good behavior act” of 1883, which the attorneys declare is not repealed by the indeterminate sentence law.

The attorney general on Feb. 3 submitted an opinion to the Governor, in which he agreed with the attorneys for McCoy. Had not Warden Reid bestirred himself when information regarding the contention of the attorneys reached him McCoy would have been out of prison by this time. His maximum sentence of three years expires June 19. Warden Reid found in an old case of Davis vs. the State an opinion from the Supreme Court which did not accord with the attorney general’s views.

“I am of the opinion,” the attorney general said yesterday, “that there is nothing in the case of Davis vs. the State to cause me to reverse the opinion given you on the 3d day of February.” The attorney general suggests that the best way to settle the matter, in view of the broad language used in the Davis case, would be by habeas corpus proceedings brought by McCoy’s attorneys for the release of McCoy. “It would be advisable,” the attorney general says, “to have an authoritative adjudication of the case. If the prison officials refuse to discharge the prisoner referred to he can file his petition for a writ of habeas corpus and the question can be definitely settled by the losing party appealing from the decision of the lower court.” George B. Haywood of Lafayette, who was McCoy’s principal attorney and who was at the Denison

Hotel last night, said that under the .attorney general’s ruling he would, It Warden Reid refused tp release the prisoner, file habeas corpus proceedings in the lower courts of Michigan City. "Unless,” he added, McCoy makes objection.” Governor Marshall read the attorney general’s opinion last night before leaving his office. "I am going; let the matter be settled by the court,” the Governor said, "in accordance with the recommendation of the attorney general. I have nothing further to do with the matter until the court has passed on It.” Davis Case Does Not Apply. Thursday evening’s Indianapolis News says: In his second opinion the Attorney-General says that he has no reason to recede from his former position. The AttorneyGeneral explains that that part of the decision in the Davis case which is cited by Warden Reid was given to settle the question of whether the good time of a man sentenced under the indeterminate sentence law should be permitted to apply to the minimum sentence. Davis committed his crime before the Indeterminate sentence law took effect and his attorneys declared that the indeterminate sentence law was expost facto because it repealed the good time law. On this point the court said the theory that the indeterminate sentence law was ex-post facto because it repealed the good time law was not tenable. This was the only reference made to the question of whether or not the indeterminate sentence law repealed the good time law. Following this a number of prisoners and their attorneys made the contention that the good time to which the prisoners were entitled should be applied to their minimum sentence.

Applies Only to Minimum Sentences. it was at this point that William L. Taylor, then Attorney-General, petitioned for a re-hearing of the case to settle this point, says Mr. Bingham. In answer to this petition the court said that a man sentenced under the' indeterminate sentence law was not entitled to his good time. Attorney-General Bingham declares that it has been held many times that the case which is decided must be taken into consideration in construing a decision and the only point raised in this case, he says, was whether or not the good time should apply to the minimum sentence. Mr. Bingham points out, also, that the theories of the two laws are different, and hence the indeterminate sentence law could not be taken to repeal the good time law by implication. The object of the good time law is to improve a man’s conduct while he is in prison, while the object of the indeterminate sentence law is to reform the man for life. In other States it has been held that two such laws may stand together. Such a decision was given in the New York Court of Appeals in the case of Schali, vs. Dyo, warden, when it .was held that the commutation law of New York, which is similar to the Indiana good time law and the indeterminate sentence law could stand together. The court held, however, that the prisoner “was not entitled to good time until he had earned it.” Mr. Bingham declares that good time would apply only to the maximum sentence because the maximum sentence is really the judgment in the case. He suggests, also, that it would be well enough to have the case decided by a higher court and that to this end the attorneys for McCoy might bring habeas corpus proceedings and then the losing party could take an appeal.

To Begin Suit. Yesterday’s Indianapolis Star had the following brief mention of the case: Suit to have Thomas J. McCoy released from the State Prison on writ of habeas corpus will be filed in the courts at Michigan City at once. The proceedings are to be brought under the decision rendered by Attorney Bingham to Governor Marshall. "~

Attorney George B. Haywood yesterday afternoon wired his law partner at Lafayette to file suit at once. Said Mr. Haywood: “We are going to try this matter in the courts as soon as possible. Warden Reid of the prison, who is a state official, will be as anxious as any one else to have the question that has arisen settled, and we hope that the Supreme Court will pass on it at once as soon as the case reaches that body.”