Ex Parte Ray , 18 Okla. Crim. 167 ( 1920 )

On the submission of this cause, counsel representing petitioner waived the ground that petitioner was entitled to be discharged because he had served his sentence, irrespective of any pardon granted to him by the Governor of this state, and relied exclusively on the right to be discharged because of the benefits accruing to him by reason of a pardon granted to him by the Governor, above set forth.

In view of the fact, however, that many other convicted persons are confined in the state penitentiary under similar separate commitments for different offenses, the court was asked to establish in this case a proper rule for the guidance of the warden of the state penitentiary in the allowance of good time and work time to such of those prisoners committed under separate judgments of conviction for more than one offense under the same conditions as in this.

Section 2809, Rev. Laws 1910, provides:

"When any person is convicted of two or more crimes, before sentence has been pronounced upon him for either, the imprisonment to which he is sentenced upon the second or other subsequent conviction must commence at the termination of the first term of imprisonment to which he shall be adjudged, or at the termination of the second or other subsequent term of imprisonment, as the case may be."

Section 5957, idem, also provides:

"If the defendant have been convicted of two or more offenses, before judgment on either, the judgment may be that the imprisonment upon any one may commence at the expiration of the imprisonment upon any other of the offenses."

It appears conclusively from the provisions of the foregoing statutes that it was the duty of the trial judge, in pronouncing sentence for the separate embezzlements for which petitioner had been convicted in the district court of Oklahoma county, to make the imprisonment in the second conviction commence at the termination of the first term of imprisonment, and to make the term of imprisonment in the third conviction to begin at the termination of the term in the second, and to make the term of imprisonment in the fourth conviction to begin at the termination of the term in the third; so that it is clear that where a convicted person is committed under four separate commitments providing, as each did in these cases, that the term of the second or subsequent conviction should begin at the termination of the term of imprisonment of the next preceding conviction, that it is the duty of the warden of the penitentiary, in computing the good time and work time to be allowed to the prisoner, to compute and allow the same under each separate term as it is served, and the prisoner is not entitled to an allowance for good time and work time upon the theory that he has been sentenced to serve only a single term of imprisonment equal to the aggregate number of years of imprisonment under the four sentences and commitments.

So that in this case, under the agreed statement of facts, the prisoner had fully served the first three terms of imprisonment for which he was sentenced, and the warden of the penitentiary would be powerless to go back and deprive the prisoner of good time and work time under any of such sentences; but the prisoner had not completed serving the fourth term of imprisonment, and under the agreed statement of facts, computing the time as the court holds it should be computed, the prisoner would not fully serve and satisfy such term of imprisonment until the 21st day of April, 1921, at which time, if his record is clear of any infraction of the prison rules during the last term, and he is entitled to full credit for good time and work time on the fourth term of imprisonment, he should be discharged.

By mistake of the warden of the state penitentiary in computing the good time and work time allowed to a prisoner committed under four separate judgments of conviction with terms of imprisonment to begin as provided in these sentences, the Governor was notified by such warden that the term of imprisonment of petitioner would expire on and with the 25th day of November, 1920. Acting upon such misinformation, and pursuant to the custom of the Governor upon recommendation of the warden, the Governor forwarded to such warden on the 24th day of September, 1920, what purports to be a full and free pardon to the petitioner, restoring unto said petitioner all the rights of citizenship, with the provision on the face of said purported pardon that it was to take effect on the 25th day of October, 1920.

It is clear from the face of this purported pardon upon which petitioner relies for his release, that it was issued by the Governor on the 24th day of September, 1920, under the following mistaken impressions of fact: (1) That the prisoner had been committed to serve only one term of six years for one embezzlement committed by him; (2) that such term would expire on and with the 25th day of November, 1920, when, in truth and in fact, petitioner had been committed to serve four separate terms of imprisonment for four separate crimes of embezzlement committed by him, and, further, with good time and work time properly computed and allowed, the term of imprisonment of petitioner under such commitments would not expire until the 21st day of April, 1921.

Further, it is apparent from the face of this purported pardon and from the agreed statement of facts upon which this cause was submitted, that it was the intention of the Governor only to grant petitioner a pardon to take effect a certain number of days prior to the expiration of his term (to wit, 30 days) as an additional reward for good conduct and days worked.

A pardon is, in effect, a private deed of the executive, to the validity of which delivery is essential. Ex parte Crump,10 Okla. Cr. 133, 135 P. 428, 47 L.R.A. (N.S.) 1036; United Statesv. Wilson, 7 Peters, 150; Burdick v. United States, 236 U.S. 79, 59 Law Ed. 476; Ex parte Powell, 73 Ala. 517, 49. Am. Rep. 71; Exparte Reno, 66 Mo. 266, 27 Am. Rep. 337, 20 R.C.L. 548.

Also, it may be stated that where a full, free and unconditional pardon, immediately operative, is granted for the offense and delivered to the warden of the penitentiary in which the beneficiary is confined, its receipt by such warden is in legal effect a delivery to the prisoner himself. Ex parte Powell,supra.

Also, it is well established that an unconditional pardon immediately operative, once delivered and accepted cannot thereafter be revoked except for fraud in its procurement. ReBiegle, 7 Ohio N.P. 561; Rosson v. State, 23 Tex. App. 287[23 Tex.Crim. 287], 4 S.W. 897;State v. Nichols, 26 Ark. 74, 7 Am. Rep. 600;Ex parte Rice (Tex. Cr.) 162 S.W. 891.

If the purported pardon here relied upon became effective upon delivery, there would be no question but that petitioner is entitled to be discharged thereunder, because the same was mailed to the warden of the penitentiary in which petitioner was confined and received by him on or about the 25th day of September, 1920. But it is clear from the terms of the purported pardon itself that it was the intention of the Governor that the same should not take effect until the 25th day of October, 1920. It cannot be successfully contended by petitioner, therefor, that any rights or benefits accrued to him under this instrument until the 25th day of October, 1920.

It appears from the agreed statement of facts that prior to the 25th day of October, 1920, the Governor recalled this purported pardon, took it into his possession, and that it has remained with him ever since the 21st of October, 1920. Apparently there has been no delivery of this purported pardon to petitioner or to any one for his benefit since the date on which the same was to become a valid and operative act. The parties stand, therefore, in the same relative position as if the Governor had indicted a full and free pardon to a prisoner to take effect immediately but had never delivered the same.

Before the prisoner can claim any benefits under a pardon, he must establish its delivery. The petitioner having failed to establish that the purported pardon upon which he relies for release in this case has ever been delivered to him, or anyone for him, since the date designated therein that it should become operative, and the agreed statement of facts showing in effect that there has been no such delivery on or since that date, the conclusion is reached by this court that petitioner cannot claim that any benefits have accrued to him by reason of the forwarding of this purported pardon to the warden before the same became effective.

This cause, while orally argued by counsel for petitioner and respondent, has not been briefed by either side. The question of the validity of this purported pardon and of the benefits accruing to petitioner thereunder are matters of first impression in this court. Counsel for neither side have cited a case directly in point, and diligent research has failed to disclose an opinion of any other appellate court decisive of the same question. The court is not unmindful of the general rule governing the construction of pardons, that wherever the question is doubtful the grant must be interpreted most beneficially for the citizen or subject and most strongly against the state. However, in this case there seems to be no doubt that this instrument was directed under a mistaken state of facts, that before it became effective, or that dominion was lost over same, it was recalled by the Governor, and that there has never been any delivery of the same in the sense that it can be held that the instrument passed beyond the control of the Governor and became a valid and operative act on his part, to the benefits of which petitioner was and is now entitled. For reasons stated, the writ is denied.

DOYLE, P.J., and ARMSTRONG, J., concur.