State v. Jackson , 143 Miss. 745 ( 1926 )

Judge COOK, Judge HOLDEN, and I are of the opinion that the right conferred by the third section of this statute, on a person convicted thereunder, of electing whether he will execute a bond to support his wife and children, or pay a fine, or suffer imprisonment, as the one or the other may be imposed, is not a pardon within the meaning of that term as used in the Constitution.

"The doctrine of the authorities is, that `a pardon reaches both the punishment prescribed for the offence, and the guilt of the offender,' and that `it releases the punishment and blots out of existence the guilt, so that, in the eye of the law, the offender is as innocent as if he had never committed the offence.' `If granted after conviction, it removes the penalties and disabilities, and restores him (the convict) to all his civil rights. It makes him, as it were, a new man, and gives him a new credit and capacity.' . . . A pardon by the governor is an act of sovereign grace, . . . rehabilitates a person in all his rights as a citizen, . . . obliterates the fact of conviction, and makes it as if it never was." Jones v. Board ofRegistrars, 56 Miss. 766, 31 Am. Rep. 385.

The exemption from fine or imprisonment conferred by the third section of this statute is not of grace nor at the discretion of the court, but is a right to which a person convicted of violating the statute is absolutely entitled on compliance by him with the conditions imposed therefor by the statute. Moreover, the guilt and the conviction of the convict remain in effect with all of the consequences that flow therefrom, except liability to fine or imprisonment thereunder; and, where such is the effect of a statute, the courts generally hold that it does not encroach on the pardoning power. State v. Page, 60 Kan. 665, 57 P. 514, 20 R.C.L. 557, and authorities there cited. The statute simply provides alternative punishment — imprisonment, the giving by the convict of a bond to support his wife and children, and the compliance by him with the obligations of that bond; and — "whether punishment may be imposed at all, and, if so, its character and extent, is a matter of statute alone; and, if the legislature in its wisdom concludes it to be sound policy to offer a premium to good conduct and reform in a prisoner by tendering him an amelioration of the rigor of his punishment, we are unable to see in what manner this constitutes the slightest interference with the exercise of executive clemency." Ware v.Sanders, 146 Iowa, 233, 124 N.W. 1081.

The statute does not attempt to and could not take away from the governor his power to pardon for convictions under it, and such power, of course, remains in full force and effect.

Section 26 of the Constitution provides that a person shall not be compelled to give incriminating evidence against himself; but we have several statutes compelling a person to give incriminating evidence against himself and providing that, when he does give such evidence:

"He shall not be prosecuted or subject to any penalty or forfeiture for or on account of any transaction, matter or thing concerning which he may testify."

The exemption from punishment conferred by these statutes is valid (State v. Bramlett (Miss.), 47 So. 433; Husbands v.State, 105 Miss. 548, 62 So. 418; Lucas v. State, 130 Miss. 8, 93 So. 437; Hosey v. State, 136 Miss. 75, 100 So. 577;Ryan v. State, 136 Miss. 587, 101 So. 381; Triplett v.State, 136 Miss. 320, 101 So. 501; Sudduth v. State,136 Miss. 742, 101 So. 711); and the courts generally hold that without it such statutes would violate the constitutional right of a person to refuse to testify to anything that would tend to incriminate him. This was expressly held by the supreme court of the United States in Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110; 28 R.C.L. 441. The immunity from punishment conferred by these statutes is not of grace, but is earned by the witness and becomes a matter of right; consequently, it is not a pardon within the meaning of that term as used in the Constitution.

Our Vagrancy Statute, section 5055, Code of 1906, Hemingway's Code, section 3332, has been enforced by this court "full many a time and oft," and it contains a provision similar in principle to that of section 3 of the statute here under consideration. Section 5058, Code of 1906, Hemingway's Code, section 3335.