Opinion
13739.
JUNE 17, 1941.
Petition for habeas corpus. Before Judge Hendrix. Fulton superior court. March 12, 1941.
A. G. Smith and J. C. Bowden, for plaintiff.
John A. Boykin, solicitor-general, Bond Almand, solicitor, and Durwood T. Pye, for defendants.
In this proceeding for the writ of habeas corpus, under the allegations of the petition and the evidence presented on the trial, it was not error to remand the applicant to the custody of the superintendent of public works.
No. 13739. JUNE 17, 1941.
Marie Allman was convicted of operating a lottery, and was given a chain-gang sentence without the privilege of paying a fine. On December 5, 1940, the Governor issued an executive order, the material portion of which is as follows: "It is ordered that the said Marie Allman be and she is hereby granted a conditional pardon, conditioned upon her paying a fine of $50, and conditioned further upon her obeying all the laws of this State, of the U.S., and of any other State; and this, her conditional pardon, shall be revocable at the pleasure of the Governor." On February 27, 1941, the judge of the criminal court of Fulton County issued a bench warrant in which were cited the conviction, the sentence, the conditional pardon, and a failure of the convict to satisfy the condition. It was further stated, that, a reasonable time having expired, the conditional pardon had never become effective, and that the status of the convict was that of a fugitive at large. It was accordingly ordered that Marie Allman be apprehended and delivered to the superintendent of public works, for the purpose of serving the sentence which had been imposed on her. On March 1, 1941, the convict tendered to the sheriff the $50 referred to in the conditional pardon. This tender the sheriff refused to accept. A few days later the convict was taken into custody, and on March 10 she applied for the writ of habeas corpus. In her application the essential facts set out above were stated; and it was alleged that after her conviction she had petitioned for the writ of certiorari, which petition, after the issuance of the conditional pardon, had been dismissed by her attorney, and that within six months thereafter her renewed application for certiorari had been presented to the judge, and he had refused to order that the writ issue.
On the hearing of the habeas-corpus proceeding the applicant testified in her own behalf, and gave certain excuses for her failure promptly to pay the $50 referred to in the conditional pardon. These included illnesses and other matters; but her testimony authorized the conclusion that she had been financially able to pay out money for attorney's fees, and perhaps other matters, between the date of the conditional pardon and the date of the tender to the sheriff of the $50 on March 1. There was no dispute as to the fact that she made no tender until after the issuance of the bench warrant for her rearrest on February 27. The judge entered the following order: "Upon hearing evidence and after argument, petitioner Marie Allman is remanded to the custody of A. A. Clarke, superintendent of public works of Fulton County, Georgia." The applicant excepted.
The order quoted above was in effect a ruling that the conditional pardon had never become effective for any purpose, by reason of the failure of the convict to satisfy the condition, and that her tender of the $50 on March 1 came too late. In the recent case of Huff v. Aldredge, 192 Ga. 12 ( 14 S.E.2d 456), this court carefully considered the power of the Governor to issue a conditional pardon, its status and legal effect. Without repeating, attention is called to what is said in that decision. Applying the ruling there made to the case at bar, it must be held that the Governor's order of December 5, quoted above, was a pardon on condition, and that the condition was precedent; and inasmuch as it was not satisfied, the order never became operative as a pardon. To quote part of the second headnote in the Huff case, supra, "It was a mere offer without consideration." See also, on the subject of conditional pardon, Muckle v. Clarke, 191 Ga. 202 ( 12 S.E.2d 339). In the instant case the judgment quoted above (none of the facts in the case being in dispute) could not have been entered as written unless the judge had concluded that the delay of the applicant in her acceptance of the Governor's offer from December 5 until March 1, and until after the bench warrant had been issued for her rearrest, was unreasonable, and that on March 1 her right to make the pardon effective by satisfying the condition had ended. This conclusion was not only authorized, but under the facts appearing it was demanded as a matter of law; and this is true regardless of the applicant's testimony concerning her financial condition. Moore v. Lawrence, 192 Ga. 441 ( 15 S.E.2d 519). See also Muckle v. Aldredge, 192 Ga. 426 ( 15 S.E.2d 605). Pappas v. Aldredge, 192 Ga. 482 ( 15 S.E.2d 718).
Counsel for the plaintiff in error cite Code, § 77-513 (Ga. L. Ex. Sess. 1937-1938, p. 200): "It shall be the duty of said [Prison and Parole] Commission to provide adequate supervision of all parolees and probationers in this State, also all persons released on conditional pardon and placed by the Governor under the supervision of the said commission." It is insisted that after the executive order of December 5 the Prison and Parole Commission alone had jurisdiction of this convict, and the trial court had no power to issue the bench warrant of February 27 ordering her rearrest. But there is nothing in the record to indicate that this convict was ever "placed by the Governor under the supervision of the said commission." On the contrary it is clear that all the Governor ever did was to offer her her freedom from the sentence which had been imposed, on a stated condition which she never has satisfied, and which she did not offer to satisfy until an unreasonable time had elapsed and a warrant had issued for her rearrest.
In their brief counsel for the plaintiff request that this court require the clerk of the trial court to send up copies of certain other proceedings of record in the court below, these relating to an application for an appeal bond or supersedeas bond, with an order of the court denying such application; and also in the brief is an "assignment of error" on this order. This request is denied. With none of these matters has this court now anything to do. The sole assignment of error in the bill of exceptions is on the order entered in the habeas-corpus proceeding, remanding the applicant to the custody of the superintendent of public works; and accordingly that is the only exception which this court has jurisdiction to consider.
Judgment affirmed. All the Justices concur.