*1 MOTION ON FOR REHEARING.
LATTIMORE, his motion Judge. Appellant presents reference to error. We call at- hearing assignments again tention to the fact that this court we no attention to pay assign- error, ments of unless inbe the nature of bills of they exception. in this case shows that no bills transcript were re- exception trial, character, served nor were any exceptions taken to the court’s matters Such raised for the first time charge. in the motion for trial new are not here taken as exceptions We have reviewed the facts charge. again and deem them amply sufficient to support conviction.
The motion for will be overruled. rehearing
Overruled. Davenport. Ex Parte Gratton No. 10979. Delivered November 1927. Rehearing denied June *2 states case. The opinion A. Wright
W. San Angelo, appellant. Stinson,
Sam D. Robt. M. Attorney, Assistant Lyles, State’s. State’s Attorney, Collim & Jackson of San and Grits & Angelo, Coleman, Woodward of for the State. Presiding MORROW, Judge. on appellant, February
1926, was convicted of the offense of murder and sentenced to im- prisonment the State for a Penitentiary period ninety-nine years. to the Court of Criminal Pending appeal he at- Appeals, an an tempted escape. Upon uncontroverted affidavit showing fact, the appeal dismissed. On the 5th of January, Governor of the State conditional which in part reads as follows:
“WHEREAS, defendant is a full pardon granted subject condition that defendant, the said is and be Davenport, *3 confined, hereafter restrained and in some kept continuously State insane, for the hospital and case he is not admitted to some State insane, for the hospital then the said Gratton is to con- Davenport fined and in some kept continuously institution for the care private and treatment of the insane. And in case said Gratton is Davenport not so kept in one or the other continuously kind in- confined of stitution, then this pardon be revoked may the Governor by the of State, and said be arrested defendant, and returned to the State the his penitentiary rest natural of life.” 1927, On the 5th of the day February, Governor of this State the voked a pardon from which the proclamation quota- following tion is taken:
“WHEREAS, it has been made known to me that since the issu- ance of the aforesaid Texas, proclamation by Governor of on 5, 1927, no January have been proceedings instituted to cause said mental condition to be Davenport’s determined to the end that he to some admitted State insane and Hospital restrained, there and neither has he institu- placed any private insane, tion for the care treatment of the and and the conditions set with, forth said not been have but the proclamation complied said violated; conditions have been
“NOW, THEREFORE, I, Dan Texas, Governor Moody, of under and virtue of the vested me "by authority Constitu- of'Texas, revoke, tion and Laws of the do hereby expressly cancel annul the and aforesaid and conditional proclamation Texas, heretofore Governor of on the 5th of dav Jan- 1927.” uary, the rev- that upon proposition
This is proceeding prosecuted He contends that the appellant. upon ocation was binding a was condition subsequent in the condition embraced absolute; that the condition that became void and the was the confinement of that appel- of performance; was impossible the compliance issuance of the pardon places lant subsequent control; it is not scope within beyond with condition in- without a revoke power Governor’s based; was facts which the revocation establish the quiry of violat- of his insanity, incapable that the because appellant, condition; Governor, in having issuing ing insane, to take contrary position; the appellant estopped declared taken that the decision that no of the condition has place; breach of the law guar- has been breached violative of trial anteeing by jury deprived appellant the due of law. without liberty, process that it be ac
It is conditional validity essential it is in whose favor issued. The acceptance cepted carries with it condi pardon necessarily acceptance which, terms, the con its it is unless tions granted; of our ditions are unreasonable with genius incompatible laws, are immoral or bind performance, they illegal, impossible Law, 35; also See Case Vol. sec. 36. Ruling p. ing. Frazier, Redwine, 86; Ex See Tex. Crim. Rep. Tex. sea Crim. *4 State, 519; State, Tex. 23 Hunnicutt v. 18 Crim. Rosson v. App. 1572; 289; Proc., Tex. Crim. of Law & Vol. App. Cyc. p. State, Battistelli 213 417. v. S. W. Rep. made the
In the Governor proclamation granting pardon declaration: following the said Daven-
“My reasons Gratton pardon granting the said doubt, is that it reasonable port appears beyond insane committed the offense was at the time he Davenport convicted, which he is and will never he was and that still insane recover his sanity.” trial issue of at time the offense was the'
Upon insanity in connection with of not committed was tried the plea guilty, court, the verdict thereon by entered jury effect, in their established the sanity Davenport legal conclusively at the the state of his mind time the offense was committed. Of is there decision. was issued no pardon time 330 State,
Governor of the in issuing pardon information upon record, disclosed by present concluded that was insane Davenport at that If, time and fact, insane, thereto. previous he was in the term, full of the at the time he meaning was he was pardoned, because of his its incapable, insanity, accepting pardon; non-acceptance If, would be fatal to its at the time efficacy. pardon was accepted, had sufficient Davenport to render intelligence the pardon valid its acceptance, obviously acquiesced conditions which the upon was clemency It follows that granted. that from assumption there vested the appel- lant a carries with it right, the conclusion that his mental condition was such as him enabled accept express conditions are unable right depended. We to reach the conclusion that the invalid or the conditions are void. From jaleen: following quotation
“It is universally agreed executive extend his may mercy on what terms he pleases, annex to consequently fit, that he thinks either precedent subsequent, both, on the performance which the will validity depend.”
We have examined the cases which we following have been referred counsel for Rice, relator: Ex 168 parte S. W. Rep. 891; Lee 12 563; v. Amer. Murphy, St. Commonwealth Rep. v. Fowler, 35; 4 Call. v. (Va.) People 14 L. R. A. Cummings, (Mich.) Alvarez, 285; Ex Wolfer, Amer. parte St. Rep. State v. 19 L. R. A. 783. haveWe discussion them in pretermitted detail that, for the reason in our the announcements made in judgment, none of them are pertinent It was held present controversy. case, in the Rice Governor was without power an revoke unconditional which had accepted deal, The other cases main, beneficiary. with instances which the reservation of the of revocation was not embraced power in the instance proclamation, subject present involved —a and one which the law of this state has been settled. See long Redwine, Frazier, Ex Tex. Crim. Rep. Tex. Crim. cannot better announce the rule We ap- the matter in hand than plicable quotation following *5 a text-book: in a
“A condition de- governor summarily may with, the been and if termine whether conditions have he complied finds that have not revoke and order they offender, convict, and au- confinement of the binding upon and in the his rearrest the terms thorizes and commitment immoral, are not or im- manner Such conditions imposed. illegal, to be and to possible enforce them performed, deprives peti- tioner of no Upon its revocation the status of legal right. legal must the same as it petitioner was before regarded was His return summary granted. remandment to servitude or the sentence under violative of imprisonment organic guar- trial, that anties of no warrant shall be to jury seize any person cause, without probable affirmation, etc., oath or supported by convict, dealt with is a who has a being been seized in already been constitutional confronted his way, accusers and the witnesses him, been tried of his against jury to him peers secured constitution, crime, them convicted and been to sentenced therefor. In punishment to that crime respect before the law after it, citizen, attitude conviction of he a is not nor entitled to invoke which about the organic safeguards hedge felon, citizen’s but he is a liberty, the mere large by grace executive, and not to entitled be at he after has large breached conditions which that was grace extended him. The gov- ernor may order convict be so remanded without notice to him and without him an giving opportunity heard.” (Ruling Law, 20, 573, Case Vol. sec. p. 61.) counsel,
Appellant, through very ingenious argument, attempts distinguish present above an- principles nounced. This involves the attempt necessarily assertion that the was insane; valid was though accused but that the ac- ceptance invalid because was To render insane. valid,
in a it is essential that it be a condition precedent. Law, 551, Smith, 20, Case Vol. Ruling p. sec. v. Am. 679, Dec. 111 Am. St. 70 Amer. Ann. Cas. 92. We have failed to perceive conditions aught annexed to the proclama- tion immoral, are question illegal impossible perform- ance. In the text-books and judicial decisions are many found of conditions valid examples held which were no less onerous than those in present instance. See and cases Governor, cited in notes. The issuing
proclamation granting pardon having reserved revoke it named, with the upon non-compliance conditions was privileged do so without into breach. inquiry See
332 Frazier, Tex. Crim. Ex
Redwine, Crim. Rep. parte 91 Tex. Rep. us leads to con- the question presented
Our examination mean- full extent of the insane to the if the accused was clusion that it and term, he accepting of that was incapable ing indicated, to the extent not If he was was therefore void. insane of the con- included the acceptancé of the pardon then his acceptance above, terms of the the breach of As stated ditions. the decision the executive and submitted to its conditions was judiciary. fact, insane, if, in he was not add that is appellant We will the statutes that “no who declaring without remedy through in after is shall while insane found guilty punished becomes P., condition,” C., P. and C. Art. C. (Art. such 1925), as follows: reads which conviction, time after “If it be made known the court insane, if reason to that a the court has believe defendant good as in criminal cases to try shall be impaneled question jury insanity.” these stautes the court which tried the case had power
Under and accord with insanity proceed to determine question the directions mentioned. affirmed
For reasons stated of the trial court is held in ordered custody. and the appellant
Affirmed. ON MOTION FOR REHEARING. an
LATTIMORE, files and interesting able Judge. Appellant no motion for that the Governor had makes rehearing point revoke the theretofore authority granted appel- power as after had been the issue lant until appellant given hearing upon Attention to whether the conditions had broken. the fact that there is in the pardon is called by appellant nothing issue, itself to the Governor the to decide said gave right Frazier, Redwine, 96, and Ex 236 S. W. Rep. 972, are differentiated case upon S. W. instant point. in this on that appellant case was granted confined,
“Be hereafter restrained and some kept continuously insane, case he is admitted for the hospital insane, then the said Gratton Davenport some State hospital is to institution confined and some kept continuously private care treatment of insane.” The to revoke *7 set out “And in case expressly therein in the following language: is not so or said Gratton confined in' Davenport kept continuously institution, one or the other kind of then this may be State, the of the and defendant be arrested voked Governor said by the for the rest of his natural and returned to State penitentiary life.” of the order revocation issued Governor is fully The set in it is out the and same certified the original opinion, Governor me,” etc., i.e., “It that has been made known to that in some the way had Governor received information that the the conditions of .pardon us of had been record before is bare violated. showing as to how or what means the informed, Governor so and it that, least, facie at the recital in occurs to us the prima revoking to, referred must be held order last the justify issuance of such order the of the assumption of the regularity information had the Governor. there is no
When reservation in express Gov- ernor of the of determination that right conditions of said violated, pardon have been and no statute exists lodging any par- ticular or determination, tribunal such of right will courts be remitted common law rules in such cases. governing We find Law, Case Ruling following:
“The established at the common practice law and the American states, in the absence of and in the statutory regulation absence from of itself stipulations express is for some purpose, court of criminal its attention general jurisdiction upon having called, otherwise, or by affidavit to the fact that a convict pardoned violated, has or with, failed to the condition or conditions comply rule, of his to issue pardon, reciting original judgment sentence, conviction and conditions, its the al- pardon and and of, with, violation leged noncompliance condition or condi- thereof, tions and sheriff arrest requiring convict cause, can, him before the court to show if bring any.he why sentence him should not be original imposed upon executed.” such Whether was had in case investigation to the issu prior revocation, ance does not save in the appear, implication from the recital in said order that the arising Governor was in formed, State, etc. In the case Alvarez v. 50 Fla. cited as *8 of the to decide right
no reservation Governor violated, of grantee that conditions of same have —the desired, if he so to a determination judicial would be entitled conditions, also of but we are of his violation such of the question if, his or after arrest end is attained fully upon of that this opinion a revocation, his writ of he have hearing virtue of his show and at such he hearing right habeas corpus, given in the such conditions. This was done that had not violated order, After the revoking appel- instant case. Governor a his writ of habeas corpus, hearing lant sued out him we note the following: remanding of about the 5th further finds that on or day “The court Janu- a of Texas issued proclamation the Governor of ary, to the said Davenport. and conditional pardon for in said that the provided further finds conditions “The court after a reasonable length not carried out as required, pardon w^re had elapsed. of time Texas, Moody, of Dan court further finds Governor
“The the 5th revoked day February, on or about of on account Miriam A. theretofore Governor Ferguson, granted the defendant.” of conditions by breach of the as question appellant This seems decisive right to decide whether conditions a hearing had been violated by appellant. to the Gov- hold that reservation regardless any
Some cases violated, a if the conditions of pardon ernor of to decide right Meador, v. to so Woodward he has decide. right that inherently 48; State, 124 Ind. Com., y. v. 135 Mass. Fuller Kennedy Ala. 32. In Ex 70 Ark. the condition of parte Brady, more, that would it was Brady violate law no held pardon being habeas release after he retaken corpus seeking following a of a annulled that his own act had peremptory revocation the pardon and he was not further Some entitled hearing. cases hold that issue of violation vel non of the conditions court, tried pardon, may be before the Haff Dyer, v. 4 Ohio C. C. Wolfer, be before State v. jury. Minn. 135. case, The last State, mentioned as also Alvarez v. says test the of such proceeding violation is question in- purely formal. We know of no under the orderly proceeding practice this State competent court can be invoked issue, such try save habeas corpus the arrest of following accused in of the revocation. consequence Hence our holding has appellant no cause for here. complaint three
Appellant other urges motion, each grounds of which considered, was carefully weighed and as we think properly decided our original opinion.
The motion for is overruled. rehearing
Overruled. Ex Parte C.E. Smith. *9 11951.
No. Delivered June notes supporting quotation substance, held, it as think we one taken correctly, into a claim that he violated the conditions custody upon had if conditional has his a habeas pardon, corpus right hearing, decide whether such conditions have been violated then such in the law or given Governor pardon, con accused show that he had violated hearing might ditions of such shown he should be pardon, discharged, being otherwise not. The exact matter here involved of first impression In Rice, in this 72 Texas State. Crim. Rep. prin discussed, was to no issue made some extent but there ciple being in that case of the violations of conditions of So, also, in Ex was more or less obiter dicta. discussion Frazier, 239 W. S. that, no in this there statute opinion being We would issue, the trial such a tribunal procedure providing