Summary
In Ex parte Strauss, 320 Mo. 349, 7 S.W.2d 1000, 1001, the law is stated that "* * * A commutation of sentence is a matter of grace or favor. It is subject to rejection or acceptance by the conflict.
Summary of this case from Ex Parte DiehlOpinion
June 21, 1928.
1. IMPRISONMENT: Conditional Commutation: To Remain Outside of Cole County. Under the Constitution (Sec. 8, Art. V) providing that "the Governor shall have power to grant reprieves, commutations and pardons . . . upon such conditions and with such restrictions as he may think proper," the Governor may attach to a commutation any condition he may choose which is not illegal, immoral or impossible of fulfillment; and a condition that the prisoner depart from and remain continuously outside of Cole County is not illegal, or immoral or impossible of fulfillment.
2. ____: ____: ____: Election. A conditional commutation is subject to acceptance or rejection by the prisoner, and if he elects to accept it he does so upon the conditions it imposes.
3. ____: ____: Revocation. In the absence of a statute authorizing the Governor or the Commissioners of the Department of Penal Institutions to ascertain and determine whether the commuted prisoner has violated the conditions of a commutation granted him by the Governor, and in the absence from the commutation of an express stipulation authorizing the Governor to ascertain and determine whether the conditions have been violated, the Governor has no authority to revoke the commutation or cause the convict to be rearrested and imprisoned for the unexpired part of the term for which he was sentenced: but even though the condition attached to the commutation be valid, only the proper court can determine whether the condition has been violated.
Corpus Juris-Cyc. References: Pardons, 46 C.J., Section 51, p. 1199, n. 73; Section 54, p. 1200, n. 93, 94.
PETITIONER DISCHARGED.
Irwin Bushman for petitioner.
(1) The condition in the commutation requiring discharged prisoner to depart from and remain continuously outside of the County of Cole is illegal and void, as depriving the prisoner of the equal protection of the law. Ex parte Schatz, 269 S.W. 385. (2) The petitioner's apprehension and imprisonment upon alleged breach of the condition of the commutation without conviction before the Judge of the Circuit Court of Cole County, are illegal. Sec. 12523, R.S. 1919. (3) The petitioner's apprehension and imprisonment upon alleged breach of condition of commutation, without a hearing before the court in which he was convicted or before some other court of general criminal jurisdiction, is illegal; and the order of revocation by the Governor upon certification of the prison board is not sufficient. 20 R.C.L. 572; State v. Horn, 7 L.R.A. (N.S.) 724; Ex parte Alvarez v. State, 50 Fla. 24, 7 Ann. Cas. 90; State v. Wolfer, 53 Minn. 135; Hough v. Dyre, 2 Ohio Crim. Dec. 727; Commonwealth v. Haggerty, 4 Brewster (Pa.) 326; People v. Potter, 1 Park Crim. (N.Y.) 47, note 2: Ex parte Patterson, L.R.A. 1915F, 542.
North T. Gentry, Attorney-General, and W.E. Sloat, Special Assistant Attorney-General, for the State.
(1) Petitioner is not deprived of equal protection of the law. When a convict accepts a parole or commutation, he accepts it subject to the conditions of the authority granting it, so long as its conditions are reasonable. Jacobs v. Crawford, 272 S.W. 932; Ex parte Mounce, 269 S.W. 387. (2) Hearing before judge was not necessary. (a) It was not necessary to have petitioner taken before the Circuit Judge of Cole County, as provided by Sec. 12523, R.S. 1919. This section has been held unconstitutional. Ex parte Schatz. 269 S.W. 384. (b) The commutation was granted by the Governor, and, unless provided for by statute, no court would have jurisdiction to hold a hearing on revocation. This would clearly be an invasion of the rights and powers of the executive as accorded him by the Constitution.
Habeas Corpus. On a trial duly had in the Circuit Court of Jackson County, Missouri, petitioner was, on September 6, 1924, convicted of robbery in the first degree and sentenced to imprisonment in the State Penitentiary for a term of five years. Pursuant to such sentence he was thereafter imprisoned until the 5th day of August, 1927, when he was discharged under a conditional commutation granted by the Governor. The executive order recited:
"This commutation is granted, however, upon and made subject to the express condition that the recipient hereof shall forthwith depart from Cole County, Missouri, and continuously remain outside of said county. If recipient shall fail to comply with this condition, then this commutation shall stand forfeited and the original sentence shall stand and remain in full force."
Thereafter, on April 12, 1928, the Commissioners of the Department of Penal Institutions reported to the Governor that evidence had been presented to them that petitioner had violated the terms and conditions of the commutation granted him, in that on various dates subsequent to August 5, 1927, he had been in Jefferson City, in Cole County, Missouri, and had not continuously remained outside of said county. In connection with their report they recommended that the commutation theretofore granted petitioner be revoked. On May 4, 1928, the Governor revoked the commutation, and petitioner was arrested and returned to the penitentiary to serve the remainder of the term for which he was originally sentenced. The order of revocation recited that it had been made to appear to the Governor that the petitioner had violated the condition of the commutation in this: that he had not continuously remained outside of Cole County.
The petitioner neither admits nor denies that he violated the condition of the commutation; he asserts: first, that the condition operates to deprive him of the equal protection of the law; and second, that even if it be valid, he cannot be imprisoned for an alleged breach of it until that fact has been judicially determined.
I. The Constitution, Section 8. Article V, provides:
"The Governor shall have power to grant reprieves, commutations and pardons, after conviction, for all offenses, except treason and cases of impeachment, upon such conditions and with such restrictions and limitations as he may think proper, subject to such regulations as may be provided by law relative to the manner of applying for pardons."
The Governor may therefore attach to a commutation granted by him any condition he chooses, provided it is not illegal, immoral or impossible of fulfillment. [Ex parte Mounce, 269 S.W. 385.] And the condition in this case to-wit: that the petitioner depart from and remain continuously outside of Cole County, is not illegal, or immoral, or impossible of fulfillment. [Fuller v. State, 122 Ala. 32.] A commutation of sentence is a matter of grace or favor. It is subject to rejection or acceptance by the convict. He has an unfettered election in that regard, and the executive order is not effective or operative until it has been accepted by him. If he prefers to serve out the sentence originally imposed upon him to a suspension of it under the conditions imposed, he has the clear right to do so. But if he elects to accept the commutation and avails himself of the liberty it confers he must do so upon the conditions upon which alone it is granted to him. [Ex parte Alvarez, 50 Fla. 24.]
II. With respect to the petitioner's second contention the law is equally well settled. A terse yet comprehensive statement of it appears in Ruling Case Law as follows:
"In the absence from the statutes of any provision authorizing the Governor to ascertain and determine whether or not there has been a violation of, or non-compliance with, the condition or conditions of a pardon and to order the rearrest of the convict and the execution upon him of the original sentence, and in the absence from the pardon itself of express stipulations so authorizing the Governor, he has no authority to inquire into or pass upon the question of a violation of the condition or conditions of such pardon, or to order the rearrest of the convict, or to subject him to the execution of the original sentence imposed, and any order of the Governor undertaking to adjudge a violation of the conditions of his pardon by the grantee and revoking such pardon, and ordering his recommitment in execution of his original sentence is a nullity. . . . A condition in a pardon that the Governor may summarily determine whether the conditions have been complied with, and if he finds that they have not may revoke the pardon and order the reconfinement of the offender, is binding upon the convict, and authorizes his rearrest and commitment upon the terms and in the manner imposed. . . . The proceeding to test the question whether or not there has been a violation of, or non-compliance with the condition or conditions of a pardon is purely informal. The established practice at the common law and in the American states, in the absence of statutory regulation and in the absence from the pardon itself of express stipulations for that purpose, is for some court of general criminal jurisdiction, upon having its attention called, by affidavit or otherwise, to the fact that a pardoned convict has violated, or failed to comply with, the condition or conditions of his pardon, to issue a rule reciting the original judgment of conviction and sentence, the pardon and its conditions and the alleged violation of, or non-compliance with, the condition or conditions thereof, and requiring the sheriff to arrest the convict and bring him before the court to show cause, if any he can, why the original sentence imposed upon him should not be executed. A copy of such rule should be served upon the convict at the time of his arrest, and when brought before the court upon such rule, if the prisoner denies that he is the same person who was convicted, sentenced, and pardoned, he has an absolute right to a trial by jury, otherwise a person might be remanded to suffer punishment who has never had a jury trial. But if his identity is not denied all the other facts and issues can be heard and tried by the judge alone." [20 R.C.L. 572-575.]
We have no statute in this State authorizing either the Governor or the Commissioners of the Department of Penal Institutions to ascertain and determine whether or not there has been a violation of the condition or conditions of a commutation granted by him, and the commutation in question contains no express stipulations so authorizing him or them. Whether the petitioner has in fact violated the condition of the commutation has not therefore been determined by any competent authority. It follows that his imprisonment is illegal, and that he should be discharged. It is so ordered. Walker C.J., and White, Atwood and Gantt, JJ., concur.