ANDERSON, Warden, v. CORALL.

On November 25, 1914, Corall was convicted of the crime of breaking into a post office and was sentenced to be confined in the Leavenworth penitentiary for three years From that date. He served in prison until February 24, 1916, when he was allowed to go out on parole under the Act of June 25, 1910 (36 Stat. 819), as amended by the Act of January 23, 1913 (37 Stat. 650 [Comp. St. §§ 10535-10544]), portions of which are printed in the margin.1 On June 25, 1916 the warden, in accordance with section 4 (Comp. St. § 10538) issued a warrant for the retaking of Corall as a parole violator. Before he was retaken, and in October, 1916, he was convicted at Chicago of another crime and sentenced therefor to the Illinois state penitentiary at Joilet, where he was confined until some time in December, 1919. After his release from that prison he was retaken, December 17, 1919, on the warden's warrant to the Leavenworth penitentiary. In January, 1920, the parole board, pursuant to section 6 (Comp. St. § 10540), took action appropriate to revoke and terminate the parole. The validity of that action is the only question involved.

Corall claims that, allowing deductions for good conduct (Act of June 21, 1902, 32 Stat. 397 [Comp. St. §§ 10532-10534]), the term of his sentence actually ended before the expiration of three years from the date it began and on or about March 17, 1917. The warden contends that the time elapsing between February 24, 1916, when he was paroled, and December 17, 1919, when he was retaken, cannot be taken into account; that when the board acted to revoke his parole, the sentence had not been served, and he was bound to serve that part of it which remained unexpired when parole was granted. February 4, 1921, Corall made application for a writ of habeas corpus to the District Court for the District of Kansas. That court decided he was illegally held and ordered his discharge. The warden appealed to the Circuit Court of Appeals, where the judgment was affirmed.

Mere lapse of time without imprisonment or other restraint contemplated by the law does not constitute service of sentence. Escape from prison interrupts service, and the time elapsing between escape and retaking will not be taken into account or allowed as a part of the term. Dolan's Case, 101 Mass. 219, 222; Petition of Moebus, 73 N. H. 350, 352, 62 Atl. 170. The parole authorized by the statute does not suspend service or operate to shorten the term. While on parole the convict is bound to remain in the legal custody and under the control of the warden until the expiration of the term, less allowance, if any, for good conduct. While this is an amelioration of punishment, it is in legal effect imprisonment. The sentence and service are subject to the provision of section 6 that if the parole be terminated the prisoner shall serve the remainder of the sentence originally imposed without deduction for the time he was out on parole.

Corall's violation of the parole, evidenced by the warden's warrant and his conviction, sentence to and confinement in the Joliet penitentiary, interrupted his service under the sentence here in question, and was in legal effect on the same plane as an escape from the custody and control of the warden. His status and rights were analogous to those of an escaped convict. Drinkall v. Spiegel. Sheriff, 68 Conn. 441, 449, 450, 36 Atl. 830, 36 L. R. A. 486. The term of his sentence had not expired in October, 1916, when, at Chicago, he was convicted of another crime and sentenced to the Joliet penitentiary. Then—if not earlier—he ceased to be in the legal custody and under the control of the warden of the Leavenworth penitentiary, as required by section 3 of the act and the terms of the parole authorized thereby. His claim that his term expired in 1917 before he was retaken and while he was serving sentence at Joliet cannot be sustained, and we hold that it had not expired in January, 1920, at the time of the action of the board. Under section 6, the board was authorized at any time during his term of sentence in its discretion to revoke the order and terminate the parole, and to require him to serve the remainder of the sentence originally imposed without any allowance for the time he was out on parole.

The judgment of the Circuit Court of Appeals is reversed, and the case is remanded to the District Court, with directions that the respondent, Arthur Corall, be restored to the custody of the warden of the United States penitentiary at Leavenworth, Kan.