Opinion
13676.
APRIL 15, 1941.
Petition for habeas corpus. Before Judge Humphries. Fulton superior court. December 10, 1940.
James R. Venable, E. W. Fountain, B. J. Dantone, and Frank A. Bowers, for plaintiff.
John A. Boykin, solicitor-general, J. W. LeCraw, and E. A. Stephens, for defendant.
1. The authority to pardon, conferred upon the Governor by the constitution (Code, § 2-2612), includes the power to attach any condition precedent or subsequent which is not illegal, immoral, or impossible of performance.
2. Where a prisoner out on parole was granted a full pardon "subject to his admittance to the aforementioned CCC camp," the condition was precedent; and since it was never satisfied, the pardon never became operative. It was a mere offer without consideration, and the Governor's order revoking it constituted a complete termination thereof, Revocation of the parole because of a violation of its terms subjected the prisoner to rearrest and service of the remainder of his sentence. His restraint for this purpose was legal, and the judgment remanding him to custody of the law was not erroneous for any of the reasons assigned.
No. 13676. APRIL 15, 1941.
At the March term, 1938, of the superior court of Fulton County, Walter Huff, alias Jack O'Shields, was convicted of the crime of larceny of an automobile, and was sentenced to a term of from three to five years. His application for a pardon was recommended by the Prison Commission, and the reasons for the commission's recommendation are set out in the Governor's pardon order, dated November 9, 1938, as follows: "That this young man, only sixteen years of age, was paroled to the authorities of the Welfare Department on October 30, 1938, due to his age and his good conduct, and since being paroled has conducted himself in a very desirable manner, and at this time has made application to the Civilian Conservation Corps for duty with them, and it is possible to secure his admittance by the granting of this pardon, and it seems to all parties that this is the most valuable assistance that can be brought about. It is therefore the opinion of all authorities involved that this recommendation be followed." Immediately following this quotation the Governor's order recites: "Therefore, in view of the foregoing facts and the recommendation of the Prison Commission, it is ordered that the said Jack O'Shields be and he is hereby granted a full pardon subject to his admittance to the aforementioned C. C. C. camp." On January 23, 1939, the following order was issued by the Governor: "Whereas, on November 9, 1938, one Jack O'Shields, a prisoner sixteen years of age, was granted a conditional pardon, conditioned upon his being immediately admitted to a C. C. C. camp; and whereas, after his release and before his acceptance in said camp, he was again arrested for the violation of a Federal statute and is now in the custody of the Federal officials: it is hereby ordered, that his conditional pardon be revoked, and that a detainer be placed with the Federal officials, asking that he be turned back to Georgia prison officials upon his release from whatever Federal penitentiary he is assigned to." On December 20, 1940, Walter Huff, alias Jack O'Shields, filed a petition to Judge Humphries, of Fulton superior court, alleging that he was illegally restrained of his liberty and was confined in the common jail of said county by the sheriff; that the cause or pretense of said restraint of his liberty was under and by virtue of a warrant or order signed by the Georgia Prison and Parole Board, wherein it was alleged that the petitioner had violated a parole granted to him by the commissioners, and also under a pretended revocation of a pardon granted by Hon. E. D. Rivers, Governor, on November 9, 1938; and that the board and the Governor had passed an order revoking the pardon, although petitioner was granted a full pardon from sentence of from three to five years, imposed during the March term, 1938. A copy of the pardon above set out was attached to the petition. The petition asserts that the petitioner now offers to give bail, and prays for the writ of habeas corpus, directed to J. C. Aldredge, sheriff, requiring him to bring petitioner before the judge to whom the petition was addressed, for the purpose of examining into the cause of petitioner's detention. The sheriff answered, admitting his detention of petitioner as sheriff and jailor of Fulton County, but denying that the detention was illegal, denying the allegation that petitioner was granted a full pardon, and asserting that the pardon was made conditional by the provision in the Governor's order that it should be "subject to his admittance to the aforementioned C. C. C. camp." The answer further alleged, on information and belief, that after the grant of a parole to petitioner and before the revocation thereof, and between the grant of a conditional pardon and the revocation of the same, the petitioner was charged with and convicted of transporting a stolen automobile from one State to another, and at no time entered a C. C. C. camp; whereupon the Governor revoked the conditional pardon and ordered his return to the custody of the Georgia prison officials.
At the hearing on December 30, 1940, the petitioner testified, that he was brought to the Fulton County jail on September 17, 1940; that he had just served nineteen months and six days on a two-year sentence imposed by a Federal court in January, 1939; that he had been kept in the Fulton County jail since he was brought there in September; that he was sentenced in Fulton County in March, 1938, and was released on parole in October, 1938; that he was given a pardon in order to get in the C. C. C. camp; that he went to 160 Pryor Street in Atlanta, and made application to get in the C. C. C. camp, but was advised that it was filled up; that he made several trips trying to get in, but failed; that he was willing at that time to go to the C. C. C. camp; that his right name is Walter Clifford Huff; that he gave the name of Jack O'Shields when he was arrested; and that he was sentenced in the Federal court for transporting a stolen automobile from Georgia to Florida, which he did between the grant of his pardon and its revocation. Copies of the pardon, the order of the Governor revoking the same, the petitioner's plea of guilty and sentence thereon in the Federal court, were admitted in evidence on the hearing. An order was passed, remanding the petitioner to the custody of the sheriff, to be dealt with as the law directs; and the petitioner excepted.
1. The condition attached to the pardon has not been met by the prisoner, but he now challenges the authority of the Governor to attach that condition, and contends that even though the condition is valid it is a condition subsequent, without limitation as to time for performance, thus giving him the right to fulfill the condition at any time during the remainder of the term for which he was sentenced.
Our governmental scheme for protecting society from crime and criminals entrusts to each of the three co-ordinate departments constitutionally defined functions. The legislative department enacts laws making certain acts criminal and prescribing punishment therefor. The judiciary determines by trial the question of guilt or innocence, and upon conviction imposes sentences as prescribed by law. The executive is empowered to reprieve and pardon, to commute penalties, remove disabilities, and remit sentences, after conviction. Neither can lawfully invade the sphere of the other. When the executive in the performance of his power and duty grants a pardon, neither the legislative nor the judicial department has the right or power to interfere. It has been said that when a pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eyes of the law the offender is as innocent as if he had never committed the offense. Although laws are not framed on principles of compassion for guilt, yet when mercy in her divine tenderness bestows on the transgressor the boon of forgiveness, justice will pause and, forgetting the offense, bid the pardoned man go in peace. The heavy responsibility resting upon the Governor when he grants a pardon is apparent. He is compelled to rely upon representations made on behalf of the prisoner, and to repose confidence in one who has transgressed the laws of the State. It is not possible for him in every case to avoid mistakes, either in accepting as true representations made or in reposing confidence in the prisoner. He ought to have authority, when called on to discharge the dual responsibility of granting a pardon to a deserving prisoner and protecting society from the evil influences and offensive associations of unreformed criminals who have procured a pardon by a betrayal of the Governor's confidence, to safeguard these interests by attaching conditions. The authority of the Governor to grant a full pardon is conferred by the constitution. Code, § 2-2612. The grant of a conditional pardon is of less gravity and importance than the grant of an unconditional pardon, and the authority to grant the latter necessarily embraces the authority to grant the former. The greater includes the lesser. In Muckle v. Clarke, 191 Ga. 202 ( 12 S.E.2d 339), this court held that the Governor had authority to attach any condition precedent or subsequent which is not illegal, immoral, or impossible of performance. Courts of other jurisdictions have also sustained the authority of the pardoning power to attach such conditions. In re Conditional Discharge of Convicts, 73 Vt. 414 ( 51 A. 10, 56 L.R.A. 658); Pagano v. Bechly, 211 Iowa, 1294 ( 232 N.W. 798). The condition attached to the pardon in the present case not being illegal, immoral, or impossible of performance, it is valid, and the Governor had the constitutional authority to attach the same.
2. Where the statutes make no provision for the Governor to determine whether or not there has been a violation of the conditions of the pardon, and where such authority is not expressly reserved in the pardon, the Governor is without authority to inquire into or pass on such issues, or to order the rearrest of the prisoner, or the execution of the original sentence. In such a case the prisoner is entitled to a hearing before a court. 20 R. C. L. 572, § 60. If such authority is conferred by law or reserved in the pardon, the Governor may exercise it. 20 R. C. L. 573, § 61. These rules apply only to conditions subsequent, since there can be no pardon until all conditions precedent are satisfied. In the present case the pardon made no such reservation, and the statutes of this State confer no such authority upon the Governor. These rules of law together with the facts in this case are illuminating on the question whether the condition stated in the pardon is precedent or subsequent. The pardon shows, that, despite the representations made by the Prison Commission that the prisoner had been paroled because of his youth, that his conduct was good, that he had made application for service in the C. C. C., and that this application would possibly be accepted if the prisoner was granted a pardon, the Governor was not entirely convinced. He could have granted an unconditional pardon, but he refused to do so. By specifying the condition the Governor in effect said to the prisoner, I am not convinced that the representations are true, but if you can establish their truth I will grant the pardon. Obviously the Governor attached much importance to the condition; else he would not have made it the determining factor as to whether or not a pardon would be granted. He did not consider the prisoner worthy of a pardon unless the truth of these representations could be established by the prisoner's fulfilling the conditions stipulated. Being thus deeply concerned about the fulfillment of the condition, would not the Governor have reserved authority in himself, by the provisions of the pardon, to determine whether or not it had been satisfied if the condition was subsequent rather than precedent. The fact that the prisoner had already been discharged from the State prison and was enjoying full liberty under a parole previously granted compels the conclusion that neither he nor the Governor intended that the pardon should operate as a means of discharging him from confinement in prison pending the satisfaction of the condition of the pardon. While the power to attach conditions precedent might authorize the Governor to order the prisoner's release for a time sufficient to enable him to meet the condition, it could hardly be held that the Governor could for such purpose require his indefinite release from the prison where he was serving a legally imposed sentence. This would constitute an unauthorized interference by the executive with the orderly functions of the judiciary.
The authority of the Governor to act in the case after the court has performed its functions by imposing sentence is found in the constitution (Code, § 2-2612); and while it is supreme, it is clearly defined and is strictly limited to the grant of reprieves and pardons, commutation of penalties, removal of disabilities, and remitting any part of a sentence. The constitution does not empower the Governor, without attempting to perform either of these functions, but solely as a preliminary to the performance of a pardon, to thus set free one serving a sentence regularly imposed. This pardon fixes no time within which the condition must be met. As related to a condition precedent, a time limit is unimportant since the status of the prisoner is unchanged and the pardon is inoperative until all such conditions are satisfied. In the meantime the Governor may withdraw it if he chooses. It is a mere offer to pardon, made as a matter of grace and without consideration flowing from the prisoner. For it the prisoner has paid nothing, and in it he has no rights before it has been accepted by satisfying every condition precedent. Ex parte Collins, 32 Okla. Cr. 6 ( 239 P. 693). It is in this respect similar to an offer to sell, for which there is no consideration and which has not been accepted. In Timmons v. Bostwick, 141 Ga. 713 ( 82 S.E. 29), this court held that such an offer to sell could be withdrawn before acceptance. A pardon signed by the Governor is inoperative and confers no rights upon the prisoner until it has been delivered by the Governor and accepted by the prisoner. United States v. Wilson, 32 U.S. (7 Pet.), 150 ( 8 L. ed. 640); Ex parte Powell, 73 Ala. 517 (49 Am. R. 71). The fact that the pardon in the present case was delivered to the prisoner does not show an acceptance, since the condition stipulated therein has not been met. In Peacock v. Horne, 159 Ga. 707, 724 ( 126 S.E. 813), it was said: "The mere manual transition of such a paper is one thing; delivery of the instrument as an element of a contractual obligation is a different thing. The former without mutual intent to give validity to the paper, but a mutual intent to the contrary, does not constitute delivery. Carpenter v. Carpenter, 141 Wis. 544, 124 N.W. 488. Delivery is a matter of intention to be gathered from all the facts. Baxter v. Chapman, 147 Ga. 438 ( 94 S.E. 544); Willingham v. Smith, 151 Ga. 102 ( 106 S.E. 117)." In that case this court held that since the parties who signed the instrument delivered it on condition that the other party sign, and the other party failed to sign it, "such transmission of the paper did not constitute its delivery by the parties who so signed it." Under this rule, the failure of the prisoner in the present case to satisfy the condition contained in the pardon caused a failure of such delivery as would make the pardon operative.
In ex parte Ray, 18 Okla. Cr. 167 ( 193 P. 635), the Governor of Oklahoma, acting upon a misconception of the facts, issued a pardon ordering the discharge of the prisoner on a date fixed, thirty days after the pardon was signed. This pardon was delivered to the prison warden, but upon discovery of the mistake, and before the date on which the pardon was to become effective, the Governor recalled it. The court held that delivery of a full pardon which was to become effective immediately to the prison warden would constitute legal delivery to the prisoner, but that the Governor was authorized to withdraw the pardon before it became operative as a pardon, and that the parties stood in the same position as if the Governor had issued a full pardon to take effect immediately but had never delivered it, and that the convict could not claim that any benefits had accrued to him in that case. The facts in the present case are very similar in principle to those dealt with in the case last cited. There, as here, the Governor signed and delivered a document intended to become operative as a pardon at a future time. There that time was fixed at thirty days; here that time was fixed at when the prisoner was accepted in the C. C. C. camp. It might have been thirty or any other number of days in the future, depending solely upon when the event took place. There the Governor was held to have authority to withdraw the pardon at any time before the expiration of thirty days, when it would become operative. Here the Governor had authority to withdraw the pardon at any time before the occurrence of the event which was to fix the date when the pardon would become operative. In ex parte Marks, 64 Cal. 29 ( 28 P. 109, 49 Am. R. 684), a pardon was issued and delivered upon condition that the prisoner leave the State forthwith, and remain outside of the State. The prisoner did not leave the State, and was taken into custody by the warden, and sought his discharge from custody on habeas corpus, basing his case upon the pardon. The court ruled that the condition of the pardon requiring the prisoner to leave the State forthwith was a condition precedent, and that since this condition was never met the pardon never became operative and the prisoner acquired no rights thereunder. That court further said that if the condition precedent had been met, the pardon would have thereupon become operative and would have been subject only to the fulfillment of the condition subsequent which forbade his return to the State.
Although the order of the Governor dated January 23, 1939, recites that the pardon is revoked, it will be construed as a revocation of the offer to pardon, since, as seen above, there was no pardon, because the condition precedent was never satisfied. But even if this attempt by the Governor to revoke was void and of no effect, it did not remove the condition precedent; and this condition never having been satisfied, the prisoner had no pardon. The record shows that he had violated the terms of his parole by the commission of a crime for which he served a sentence in the Federal prison, and it shows further that because of this violation the Prison Board had revoked his parole, and he was detained under the order of that board. Since under the foregoing rulings the prisoner had no pardon and his parole was properly revoked, his detention under the order from the Parole Board was legal. There is no error in the judgment remanding him to the custody of the law.
Judgment affirmed. All the Justices concur.