60 Miss. 910 | Miss. | 1883
delivered the opinion of the court.
Henry Fleming was convicted in the Circuit Court of Calhoun County of the crime of murder, and the judgment having been affirmed in this court he was sentenced to be hanged on the 24th of March, 1883. The Governor of the State granted a respite of the sentence until the 25th of April, 1883, with a view of investigating an application for pardon, which had been presented in his behalf. He declined to grant a pardon, and a few days before the expiration of the respite this writ of habeas corpus was sued out by the convict claiming to be released from custody, or at least to be delivered from execution on the day appointed. The writ was granted by the chancellor, but upon the hearing was dismissed, and from the order dismissing it he has appealed.
His contention is this: the Governor of this State has no power to grant a respite, and hence no power to fix a day of execution for a convict, and that, inasmuch as the day of execution fixed by order of this court has now passed, no other day can be appointed, save in accordance with sect. 3095 of the Code of 1880, which provides that where, from any cause, the day of execution passes, a new day shall be fixed by the Circuit Court of the county in which the conviction was had. The proposition rests upon a denial of any power to respite in the Chief Executive; and that the Governor possesses such power is, we think, undeniable. Pie has the unlimited and unrestricted power to pardon, and upon the principle that the greater includes the less must be held to have authority to postpone the execution of a sentence while engaged in a consideration of the question of exercising the pardoning power.
Such has been the unquestioned practical construction of our several Constitutions since the creation of the State, and such, we believe, the general rule in other States having similar Constitutions.
The power to respite necessarily carries with it the power to fix another and later day for the execution of the death sentence, since the respite is nothing more than a suspension
Some question is raised as to the proper county in which the execution in this case should take place, in view of the fact that the murder was committed in Yalobusha County, while the trial and conviction, took place by change of venue in Calhoun.
The county in which the conviction was had is the one in which the death penalty should be inflicted, nor is this changed by the fact that at this time' the convict is actually lodged for safe-keeping in Yalobusha.
Sect. 3092 of Code of 1880 directs that the execution shall take place in the jail-yard where the convict is confined, and this means the jail in which he was either really or constructively confined at the time of conviction, and this must, of course, always be in the county where he is tried.
During the pendency of these habeas corpus proceedings the Governor has again respited the relator. The execution will take place upon the expiration of that respite.
Affirmed.
