
    Commonwealth ex rel. Crimmins v. Smith, Warden.
    
      Argued March 15, 1935.
    Before Keller, P. J., Cunningham, Baldrige, Stadteeld, Parker, James and Rhodes, JJ.
    
      Herbert L. Maris, with him Shalon Ralph, for relator.
    
      Thomas I. Guerin, Special Deputy Attorney General, with him Charles J. Margiotti, Attorney General, for respondent.
    July 18, 1935:
   Opinion by

Baldrige, J.,

In this habeas corpus proceeding, George Crimmins, the relator, on January 7, 1926, pleaded guilty in York County of committing a felony and was sentenced to the penitentiary for not less than four nor more than eight years. He was released on parole, January 7, 1930; on April 21, 1931, he was returned for a violation of parole rules; reparoled June 24, 1931; again returned for a violation of rules on January 27, 1932; reparoled on July 23, 1933; and finally returned December 7, 1934, for a violation of parole rules, and is now in the penitentiary.

The relator contends that he is entitled to a credit for the time he was out on parole; that as his maximum term for which he was sentenced expired on January 1, 1934, he should be discharged. The penitentiary authorities take issue with this position, claiming that he is not to be credited with the time spent on parole, so that his term does not expire until April 8, 1937.

We have for consideration, therefore, the penalty that may follow the violation of the rules of the Parole Board. Section 10 of the Act of June 19, 1911, P. L. 1055, finally amended by the Act of June 22, 1931, P. L. 862, §1 (61 PS §305), provides that if any convict released on parole shall be convicted of any crime he shall serve in the penitentiary to which he was originally committed “the remainder of the term (without commutation) which said convict would have been compelled to serve but for the commutation authorizing said parole.” The construction of this section was considered in the case of Meinzer, who committed a crime while on parole, in which we have filed an opinion this day.

Section 14 of the Act of 1911, supra, deals with violation of parole rules, and in part reads as follows: “......and upon being so returned for said breach of parole, said convict shall be imprisoned in said penitentiary for a period equal to the unexpired maximum term of such prisoner as originally sentenced, unless sooner released on parole or pardoned.” This portion of the section was amended by the Act of June 3, 1915, P. L. 788, which provides that a violator of parole rules is “to be imprisoned in said penitentiary for the remainder of a period equal to the unexpired maximum term of such prisoner, as originally sentenced, computing the same from the date of arrest for breach of parole, unless sooner released on parole or pardoned; but if the Governor shall disapprove the finding of the Board of Inspectors [now trustees under the Act of May 1, 1929, P. L. 1182], the said prisoner shall be released upon the conditions of his original parole.”

. There is a marked, and we think a very significant, difference between this language and that used in section 10 which was applicable in the Meinzer case. In section 10 we find the emphatic expression that the violator shall serve the “remainder of the term (without commutation)/’ etc. The Legislature of 1915 undoubtedly had a very definite purpose in mind in amending section 14, and used language that clearly imports a different meaning from section 10. On March 15, 1911, Attorney General Bell gave an opinion to the Secretary of the Board of Inspectors of the Eastern Penitentiary, reported in 20 Pa. D. R. 471, in which he construed section 14 of the Parole Act of May 10, 1909, P. L. 495, which contained the same language as the Act of 1911. He held that “the hmexpired maximum term’ refers to the term of sentence and does not refer to the time passed on parole.” In view of that opinion, we think the purpose of passing the amending Act of 1915, with its added provision that the unexpired maximum term shall be computed from the “date of arrest for breach of parole,” is apparent. It seems to be quite evident that the Legislature felt that the inflicting of a penalty, compelling a violator of rules to serve his unexpired maximum term from the date he was originally paroled, was too harsh and stringent; that a parolee Avho has violated a rule ought to be considered in a different category from one who has committed another criminal offense. Otherwise, an amendment to section 14 would have been unnecessary. Furthermore, if a violator of rules is subject to serve the remainder of the unexpired term at the time of his release, the . same language as in section 10 probably would have been used.

We think the reasonable construction of the section under consideration is that the intent of the Legislature was that a parole violator of any one of the rules, which forbade a parolee, Avithout permission, to marry, change his residence or employment, leave the county or state, operate, own, or lease an automobile, be out by himself after 10:00 p. m., requiring him to report his earnings, etc., Avas not to be punished for his delinquency as severely as if lie bad committed a crime and possibly be compelled to serve years in a penal institution for a trivial offense.

Tbe relator is ordered to be discharged.  