Fuller v. State , 122 Ala. 32 ( 1898 )

McCLELLAN, C. J.

Section 12 of Article V of the Constitution confers the pardoning power on the Governor in this language: “The Governor shall have power to remit fines and forfeitures, under such rules and regulations as may be prescribed by law, and after conviction, to grant reprieves, commutation of sentence, and pardons, except in cases of treason and impeachment.”

It' is the settled law that this grant includes power to grant conditional pardons, the condition to be either precedent or subsequent, and of any nature so long as it is not illegal, immoral, or impossible of performance; and that a breach of the condition avoids and annuls the pardon. — Ex parte Wells, 18 Howard, (U. S.) 307; Woodward v. Murdock, 13 Cr. L. Mag. 71, and notes; Arthur v. Craig, 48 Iowa 264; State v. Barnes, 32 S. C. 14, and cases cited; State v. O’Connor, (Minn.) 19 L. R. A. 783, and cases cited; note to Michigan v. Cummings, 14 L. R. A. 285.

The parole of a convict is in the nature of a conditional pardon and Avithin the constitutional grant of flie pardoning power to the Governor. The power to grant pardons, absolute or conditional, cannot of course, be taken away from the Executive, nor limited by legislative action; but the General Assembly may enact laAAs to render its exercise convenient and efficient. — Kennedy’s Case, 135 Mass. 48.

The legislature of this State has enacted such a law in respect of that, description of conditional pardons knoAAm as “paroles;” and this statute is noAv embodied in sections 5461-2 of the Code, which are as follows:

“5461. Governor may suspend sentence, and parole convict on good behavior. — The Governor may, Avhenever he thinks best, authorize and direct the discharge of any convict from custody and suspend the sentence of such convict without granting a pardon, and prescribe the terms upon which a convict so paroled shall have his sentence suspended.

“5462. Convict failing to observe terms of parole may be rearrested and required to serve out sentence. Upon the failure of any convict to observe the conditions of his parole, to be determined by the Governor, the Governor shall have authority to direct the re-arrest and return of such convict to custody, and thereupon said convict shall be required to carry out the sentence of the court as though no parole had been granted him.”

These sections are really not open to construction; and little need be said in their interpretation. The parole does not in anytvise displace or abridge the sentence; it merely stops its execution for a time only, it may be, or indefinitely, it may prove — it suspends not destroys. The suspension is like that which occurs constantly in the administration of criminal laivs where the defendant appeals from the judgment of conviction. The execution of the sentence is by the appeal superseded and postponed pending the appeal; and if the judgment is affirmed the execution of the sentence thereupon begins and continues for the period set down originally in the judgment. So the word is used in this statute; and upon condition broken, the sentence, which has all along hung in its entirety over the liberty of the paroled convict, is to be executed upon him “as though no parole had been granted to him.” This is the plain meaning of the statute; and so interpreted, it involves of necessary consequence the proposition that upon condition broken even after the time at which the sentence would have ended but for its suspension, the convict may still be remanded to custody that the unserved, and hence unexpired, part of the sentence — that part which he was released from serving during the period of durance originally specified — -may be executed upon him. So the law is written.

That it was competent for the legislature to so provide, we entertain no serious doubt. A parole, like every other pardon, 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 his sentence, as originally imposed upon him, lo a suspension of it by subjecting himself to the conditions nominated in the parole, he has the clear right to do so. But if he elects to accept the parole and avails himself of the liberty it confers, he must do so upon the conditions upon which alone it is granted to him. One of these conditions is that his sentence shall continue in -fieri, and that the government shall have the power to execute it in full upon him should he forfeit the liberty and immunity conditionally secured to him by the executive order. That a convict having only a short time remaining of Ms sentence would make an unwise choice by accepting a parole upon onerous conditions for a breach of which he might years after be remanded to complete his sentence affords no argument against the constitutional integrity of the enactment. That a '.person cannot by convention with the Governor become a convict, and that by mere convention with the Executive a convict cannot alter his term of servitude, or the dates at which it is to begin and end, is no impeachment of a statute which provides for such alterations — for the suspension of a sentence during a part of its original period, and its execution as to such part at a time beyond that fixed in the judgment of conviction for its termination. The same power which provides for the original sentence, the law-making power of the land, provides also, in this instance, for its suspension, and for its ultimate execution, in' a given contingency, at another and different time; and it is equally potent in both respects. And the postponing of the sentence in such case is not merely by convention with the Governor, but is by force of a potential statute well within legislative competency to deal with the execution of sentences imposed upon convicts. It is the law that in such case postpones under certain circumstances the execution of the sentence to another time, just as it is the law which postpones upon appeal taken, the execution of sentence until another time. So it has been ruled of a similar statute in Massachusetts, (Conlon’s Case, 148 Mass. 168) ; such is the view of the Supreme Court of Minnesota expressed in a well considered opinion, (State v. O’Connor, 19 L. R. A. 783); and in South Carolina a like result is rested alone upon the Governor’s constitutional pardoning power. — Slate v. Barnes, 32 S. C. 14, and cases there cited. And at an earlier day it was supposed in Massachusetts to be necessary to provide by statute that the time during which the convict is at large under parole should be deducted from the unexpired sentence upon his remandment for breach of the condition of the parole, to the end that he should not be made to serve beyond the time fixed for the termination of the original sentence. — West’s Case, 111 Mass. 443. This statute was afterwards amended as indicated in Conlon’s Case, supra. See also on the general question of the constitutionality of statutes providing for paroling convicts, State ex rel. etc. v. Peters, 43 Ohio St. 629.

. But it is insisted that this statute, in so far as it undertakes to authorize the Governor to determine that the condition of the parole has not been complied with, and the summary arrest of the convict thereupon by the direction of the Governor, and his summary return or remandment to servitude or imprisonment under the sentence, is violative of-organic guarantees of jury trial, ■that no warrant shall be issued to seize any person without probable cause supported by oath or affirmation, etc., etc. This position takes no account of the fact that the person being dealt with is a convict, that he has already been seized in a constitutional way, been confronted by his accusers and the witnesses against him, been tried by the jury of his peers secured to him by the constitution and by them been convicted of crime, and been sentenced to punishment therefor. In respect of that crime and his attitude before the law after conviction of it he is not a citizen, nor entitled to invoke the organic safeguards which hedge about the citizen’s libeerty, but he is a felon, at large by the mere grace of the Executive, and not entitled to be at large after he has breached the conditions upon which that grace was extended to him. In the absence of this statute, a convict who had broken the conditions of a pardon would, if there were .no question of his identity or the fact of breach of the conditions, be subject to summary arrest and remandment as matter of course to imprisonment under the original sentence by the court of his conviction or any court of co-ordinate or superior jurisdiction . —a purely formal proceeding. If the person arrested •denied his identity with the convict sought to be remanded, he might be entitled to a jury trial on that issue alone. If he denied only the alleged breach of the conditions of his enlargement, he would not be entitled to a jury on that issue, but it -would be determinable in a summary way by the court before whom he is brought. But tlie statute supervenes to avoid the necessity for any action by the courts in the premises. The executive clemency under it is extended upon the conditions named in it, and he accepts it upon those conditions, (me of these is that the Governor may withdraw his grace in a certain contingency, and another is that the Governor shall himself determine when that contingency has arisen. It is as if the convict, with full competency to bind himself in the premises, had expressly contracted and agreed that whenever the Governor should conclude that he had violated the conditions of his parole an executive order for his arrest and remand-an ent to prison should at once issue, and be conclusive upon him. Of course, if in the execution of the order of arrest the wrong man should be taken, he would be entitled to enlargement on habeas corpas;-but there is no question of identity in the case before us. Upon such determination by the Governor, evidenced by the executive order of arrest, the parole is avoided and the person nvlio has been at large upon it at once falls into the category of an escaped convict, so far as measures for his apprehension and remandment under the original sentence is concerned, and he is no more than an escaped convict entitled to freedom from arrest except upon probable cause supported by oath or affirmation, nor to a trial by jury, nor to his day in court for any purpose.— Kennedy’s Case, 135 Mass. 48; Conlon’s Case, 148 Mass. 168; Arthur v. Craig, 48 Iowa, 264; State ex rel. O’Connor v. Wolfer, 19 L. R. A. 787.

Appellant relies mainly upon the case of Michigan v. Cummings, decided by the Supreme Court of Michigan. Neither the argument nor the conclusion in that case is satisfactory, and its unsoundness is demonstrated, we think, in the notes appended to the report of it in 14 L. R. A. 285.

The order of the probate judge denying the convict’s petition for habeas corpus is in consonance -with the foregoing views, and it will be affirmed.

Affirmed.