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State v. Boggs

Superior Court of Delaware, New Castle County

March 31, 1955

STATE of Delaware
v.
John W. BOGGS, Jr.

Proceeding for habeas corpus to test defendant's detention under order revoking parole. The Superior Court, Layton, J., held that under circumstances, including circumstances that no formal order was made, that defendant had been allowed counsel only grudgingly and as a friend of defendant and that defendant had been denied right to call a witness who was within the same institution when hearing was being conducted, hearing afforded defendant did not meet statutory requirement.

Matter remanded to Board of Parole.

Herbert L. Cobin, Chief Deputy Atty.Gen., for the State.

George L. Sands, Wilmington, for defendant.

LAYTON, Judge.

In 1917, defendant plead guilty to murder in the second degree and was sentenced to jail for life. In 1932, he was paroled and continued at liberty on parole for approximately 23 years when, at the May Term of this Court, 1954, he was arrested, imprisoned, and indicted for robbery and arson. The State did not bring him on for trial at the first term after the indictments were found and, having failed to bring him to trial at the second term thereafter, he was, in accordance with the provisions of Title 10, § 6910, Del.C., discharged from custody and admitted to bail upon signing his own recognizance.

The moment defendant was discharged from custody, he was arrested by the State

Page 664

Parole Officer and imprisoned upon the ground that he had violated his parole. At a hearing by the Parole Board on January 28, 1955, defendant was found guilty of violation of parole and ordered to serve out his original sentence. The only ground for revocation of parole was the existence of the two indictments above mentioned upon which there had been no trial.

Defendant brings habeas corpus upon two grounds.

(1) Was a sufficient hearing afforded defendant within the meaning of Title 11, § 7714, Del.C.?

(2) May a parole board revoke a parole on the sole ground that, during the existence thereof, defendant was indicted for a new offense?

At the hearing on the writ of habeas corpus, the following facts appeared. The prisoner was brought before the Board and apprised of the charge but at first denied the right to be represented by an attorney. Thereafter, at some stage of the hearing, his attorney was admitted into the room but warned that he was allowed there not in the capacity of counsel but rather as a [49 Del. 279] ‘ FRIEND’ OF THE PRISONER. TESTIMONY WAs taken consisting of the introduction into evidence of the two indictments returned against defendant and the defendant's statement that he was free of all guilt on either charge. Defendant was not allowed to call a witness in his behalf even though such witness was then confined in the same jail in which the hearing was being held.

Thereupon, the President of the Board orally announced that it found defendant guilty of a parole violation. No formal order was entered. The only documents bearing upon the hearing are a letter from the Secretary of the Parole Board to the Warden of the prison stating that defendant had been given a hearing, adjudged guilty and resentenced to the balance of his original sentence together with a writ issued to the Trustees of the prison over the hand and seal of the President of the Board of Parole, reciting that defendant was adjudged guilty of a parole violation and resentenced to serve out his original sentence. ...


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