Dissenting Opinion
Emmert, J.This appeal is now moot. Gilchrist’s sentence of from one to ten years for grand larceny was entered September 22, 1944, and under this judgment the maximum term expired September 22, 1954. Section 13-251, Burns’ 1942 Replacement, provides after a delinquency is declared the prisoner shall be “imprisoned in said prison for a period equal to the unexpired maximum term of sentence of such prisoner, at the time such delinquency is declared, unless sooner released on parole or absolutely discharged by the board of commissioners of paroled prisoners.” Section 13-255, Burns’ 1942 Replacement, provides, “That the maximum time for which said prisoners may be imprisoned under said Indeterminate Sentence Law shall not exceed the full term for which he was sentenced originally.” His imprisonment in the Cook County jail and later in the federal prison during the ten year period would not toll the running of this statute. To permit the executive authority by revocation of a parole to toll the running of the maximum sentence would be to vest in it judicial authority to modify a judgment in violation of Article 3 of the Constitution. Dowd v. Basham (1954), 233 Ind. 207, 116 N. E. 2d 632. However, if the appeal is to be decided it should be consistent with the legislative intent expressed in our statutes on parole.
On September 11, 1949, appellant was arrested in Calumet City, Illinois, for operating a motor vehicle while under the influence of intoxicating liquor. The next day James A. Doorley, a parole officer of this *582state, visited appellant in jail in Illinois, and was advised by appellant of all the facts concerning his delinquency. On September 14, 1949, appellant was tried on the Illinois charge, given a fine of $200.00 and costs, and because he became in default on the payment of the fine he served 42 days in the Cook County jail. On October 24, 1949, appellant was indicted by the federal grand jury for violation of the Dyer Act. During all this time Indiana made no effort to issue any warrant for his arrest as a parole violator and no parole warrant was issued for appellant until January 24, 1950. On February 24, 1950, he was declared delinquent.
Section 13-251, Burns’ 1942 Replacement, provides as follows:
“At the next meeting of the board of commissioners of paroled prisoners, held at such prison, after the issuing of a warrant for the retaking of any paroled prisoner, said board shall be notified thereof. If said prisoner shall have then been returned to said prison, he shall be given an opportunity to appear before said board, and the said board may, after such opportunity has been given, or in case said prisoner has not yet been returned, declare said prisoner to be delinquent, and he shall, whenever arrested by virtue of such warrant, be thereafter imprisoned in said prison for a period equal to the unexpired maximum term of sentence of such prisoner, at the time such delinquency is declared, unless sooner released on parole or absolutely discharged by the board of commissioners of paroled prisoners.” (Acts 1897, ch. 143, §8, p. 219.)
The statutory provisions for parole should be construed in favor of the prisoner and against a restriction of liberty. Dowd, Warden v. Johnston (1943), 221 Ind. 398, 47 N. E. 2d 976. The Indiana authorities seek to exercise a statutory right which is limited by our own *583Constitution, and what other states may do under their statutes and Constitutions cannot affect the rights and duties of the parole authorities and the prisoners in this state. An act of delinquency may be waived by the failure to issue a warrant, or it may be waived after the warrant is issued and the matter comes on for hearing. But after it is once waived there is nothing in the statute that authorizes a later revocation for the same act or omission. The whole statutory scheme shows that parole authorities should exercise diligence after being apprised of an act or omission which might be cause for revoking the parole.
Our parole administration is a part of the administration of justice, which §12 of Article 1 commands “shall be administered . . . speedily, and without delay.” There was nothing done speedily, and without delay in this record. Unless we require the parole authorities to act promptly upon discovery of an act or omission which is a cause for revocation of parole, shocking results will follow. A prisoner could be convicted of stealing a shotgun and be sentenced from one to ten years. He could be paroled at the end of one year, and if within six months after the parole began he committed an assault and battery, of which the parole authorities had knowledge, they could wait until nine years of his term had expired before issuing the warrant and holding the hearing, and then revoke his parole and imprison him for another year for an act he committed eight years before.
I cannot agree to a construction of the statute which opens the door for our parole officers and agents to use the statutes as an instrument of terror, oppression, or even extortion.
Gilkison, J., concurs in this dissent.
Note. — Reported in 122 N. E. 2d 93.