The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1899-10-01
PURNELL SAYS so
OVER-RULES DECISION OF
JUDGE MONTGOMERY.
A MooNSHINER FROM ALABAMA RELEASED
The Matter VIII Come up This Week Before the
North Carolina Supreme Court for
Final Determination by the
Full Bench.

And nowN4 here's another judicial con
struetion of the law passed by the last
Legislature i'll regard to commmta ton
for convicts in the penitentiary
The last Legislature amended the law
as to the communication of prisoners, Civ.
ing prisoners five days in every mGntl
of sentence and ten cents for each day
so committed for their good behavior
This was done as AN incentive to the
prisoners to work we'll and behave prop.
cry, and was unanimously PASSED. Re
Gently an attempt has been made to con
st1ue the law as being retroactive; thar
is, to apply to all conyiots and in reckon
ing their communication to go back to the
beginning of their term.
And this was the construction put
upon the law by Justice Montgomery,
of the North carolina Supreme Court,
when the matter first came before him.
August Both, ON a writ of habeas corpus
sued out be Lee Summers. But on
September Sth the same point was again
argued IN the case of John McAIahan.
and Judge Montgomery reversed his de-
cision-Iholding that there is nothing in
the statute to warrant the idea that It
is intended to be retroactive.
And thus the matter has stood until
yesterday, when it came up before Judge
Purnell, of the United States District
Court, ON a writ of habeas corpus sworn
out by Frank Benafield, a Federal pris-
oner from Alabama
Benafield was convicted on November
%, 1898, in Alabama, for Illicit distilling
and was sentenced to a term of year
and a day in tlhe penftentiary and to
pay fine of $500. He set forth in his
petition that he was entitled, under the
recent act OF the Legislature, to com
mutation from the day he was sentenced,
and asked TO be discharged.
Judge Pmnell after hearing the facts
in tae case and argument on them de-
cided that the law was retroactive and
ordered Benafield's release His order
IN full is as follows:
The petitioner being before the court
eaE a writ of habeas corpus this day
issued and it appearing to the court that
he is confined in the State penitentiary
of North Carolina by virtue of the COM
mitment from the district court of the
Middle District of Alabama for a term
of enc year and day. dating from the
23rd of November, 1898, and fine Of
500 and cost; execution WAS ordered
to issue and mo order that defendant
stand committed lmtil said fine and cost
We're paid; and it further appearing 10
the court that since said day petitioner
has been and is NOW confined i'm the
penitentiary of North Carolina, a prison
designated by the Attorney General for
the confinement of prisoners convicted of
crimes against the United States in said
district And it further appearing to
the court that petitioner has deported
himself as an orderly prisoner:
1T is therefore ordered and adjudged
that petitioner, under section 5544 Re-
vised Statutes of the United STATES, IS
entitled to the communication allowed hy
the Rules and Regulations of the North
Carolina penitentiary. prescribed IN sec
ton 3445 of THE Code, as amended by
chapter 457 Public Laws of North Caro-
lima, 1899, TN re Willis, SO #. r., 1883
and committing his term of Imprisonment
under this rude said PRISONER is entitled
to credit of 80 days for good behavior
and an additional , days for communal
tion, making total amount to his credit
30 days; deducting this time from the
term of Imprisonment petitioner lis emit
tied to his discharge.
And it is ordered that the said
Frank Benafeld be, and he is hereby
discharged from custody"
I'm accordance with This order Bena-
field was yesterday released.
The McMahan case, decided by Justice
Montgomery, has been appalled, to the
tull bench, and the Supreme Court yes
terday, in view of the Importance OF hav-
ing am early decision of the question,
decided to advance it ON the docket for
am early hearing.
Tt is stated en- good authority that #
This law is construed SO as TO be retro
active the result will be a raid ON the
State Treasury. The increase i'm com
mutation per month under Judge Palr-
nell's decision will amount to about $500.