State v. . Alexander , 76 N.C. 231 ( 1877 )

The pardoning power is a useful one. It answers about the same purpose in the administration of criminal matters that equity does in the administration of civil matters. Equity supplies that wherein the law by reason of its universality is deficient; and pardons supply that wherein the criminal law by reason of its universality is deficient. It is however capable of abuse. And the provision in our Constitution which allows its exercise only after trial and conviction is intended to prevent its abuse.

At common law the Crown exercised the power of pardon at any time. The consequence was that crimes were smothered. The facts were not brought to light. The person charged was not brought before the public and required to answer the charge and of course the public were dissatisfied. But under our Constitution and statute, the person charged must be brought before the public in a public trial and face his accusers and all the facts must appear and the jury must find him guilty and the Court must sentence him. If then he will ask for pardon, he cannot deceive the pardoning power. The public are in possession of the facts and can resist his application. Nor is the pardoning power any longer irresponsible to the public; because he has to report the facts and his reasons for exercising the power.

It is not denied that a pardon granted under these circumstances is valid, but the objection made is that these pre-requisites do not exist in this case, for although the defendant had been regularly charged, tried, found guilty by the jury and sentenced by the Court, thereby bringing his case within the constitutional provision, yet he took it out of the provision by appealing to the Supreme Court, which appeal vacated the sentence or judgment; and so there was no "conviction" remaining, and therefore the pardon is invalid as wanting a "conviction" to support it. And this brings us to the construction of the Constitution as to what is meant by "conviction." Does it mean the verdict of the jury, or the sentence of the Court, or the verdict and sentence both? The word is ordinarily used to denote the verdict of the jury, guilty. How did the jury find? Guilty; or, they convicted him. What did the Judge do? Sentenced him to be hanged. This is the language ordinarily used in such matters, both in conversation and in books, law and literary. It is never said that the jury sentenced him nor that the Judge convicted him.

In State v. McIntire, 1 Jones, 1, Chief Justice Pearson says: "The judgment is referred to in the pardon as subsisting, whereas in fact it was annulled by an appeal to the Supreme Court, and if that Court should decide there was error and direct a venire de novo, the conviction also would be annulled and the defendant stand as if there had been no trial."

There, manifestly the verdict is considered to be the conviction. See also 25 Grattan, 850, and 109 Mass. 130. But furthermore the Constitution itself unmistakably fixes what it means by conviction. "No person shall be convicted of any crime but by the unanimous verdict of a jury," c. Art. I, § 13.

Nothing can be a conviction but the verdict of the jury. Take that to be so; still inasmuch as the Constitution in the same section in which it authorizes the Governor to pardon "after conviction," requires him to report to the General Assembly not only the conviction but the sentence, is it not intended that there shall be a sentence to report; else how can he report it? And if the appeal vacates the sentence, then there is no sentence to report; and so there is no sentence to support the pardon. Technically that would seem to be so, but it is a refinement merely. Suppose the defendant in his application for pardon should say; "I was convicted of murder and sentenced to be hanged; I appealed to the Supreme Court, but I abandon the appeal and pray for a pardon;" might not the Governor pardon him and in his report say that the applicant had been convicted of murder and sentenced to be hanged and appealed to the Supreme Court, but abandoned his appeal and prayed for pardon; and that he had pardoned him because he was satisfied that he was innocent? Would not that substantially comply with the Constitution to say that he had been convicted and that he had been sentenced, c?

It is insisted that the object is not to pardon him while he is making defence, nor until he surrenders and begs for mercy. If that were true, still does he not surrender and beg for mercy when he abandons his appeal and prays for pardon? But it is not always true that the defendant ought to be expected to surrender and beg for mercy. There are cases where he has been improperly convicted and asks not for mercy but for justice.

The pardon has been shown us, and the Attorney General consents that the case may be considered as if the pardon were properly pleaded.

We therefore declare that the defendant is entitled to be discharged on payment of costs and upon the terms of the pardon.