269 P. 782 | Okla. Crim. App. | 1928
This is an original proceeding in habeas corpus. The petitioner alleges, in substance: That he is illegally restrained by the sheriff of Oklahoma county. That in December, 1927, he was convicted for having the unlawful possession of narcotics, and was sentenced to serve a term of one year in the state penitentiary. That no appeal was taken from such judgment, and he was incarcerated in the penitentiary and served two months and four days. That the Governor of the state then issued an order to the warden of the penitentiary, ordering the release of petitioner and the delivery of him to the federal authorities. That petitioner was then taken from the penitentiary and delivered to the federal authorities at Oklahoma City, was confined for some time in the county jail as a federal prisoner, then convicted in the federal court, and sentenced to serve six months in the county jail, which sentence he has fully served. That he is now being held without commitment or warrant for the purpose of returning him to the state penitentiary under the judgment in the state court. The allegations are not controverted, and the facts are either admitted or stipulated in open court.
It is well settled that the power of the state government is sovereign within its territorial limits, except as restricted and limited by the federal Constitution and laws; that the powers of the federal government and of the state government, although covering the same territorial limits, are those of separate and distinct sovereignties, acting separately and independently within their respective spheres. Ableman v. Booth, 21 How. 506, 526, 16 L.Ed. 169. In these separate jurisdictions, each has courts to declare and enforce its laws in common territory. It is highly desirable that there should be no conflict of jurisdiction and that there should be a spirit of reciprocal comity and mutual *3
assistance. To this end it is generally held that the sovereignty which first takes jurisdiction either of person or property must be permitted to exhaust its remedy before the court of other sovereignty shall take it for its purpose. Covell v. Heyman,
There is introduced in evidence an order, signed by the Governor and attested by the secretary of state under the great seal of the state, which, in substance, recites and directs that petitioner has been convicted and is serving a sentence of one year in the state penitentiary, and orders the warden of the penitentiary to deliver petitioner to the federal authorities. A part of said order is as follows:
"* * * Whereas, it is made to appear that the cause of United States of America v. Henry L. Guy, No. 6554, will be called for trial during the first part of March in the year of 1928, and in order that he may be present in said court for said trial, it is hereby ordered that the warden of the penitentiary deliver the said Henry L. Guy to Ben Dancy, sheriff of Oklahoma county, Oklahoma, to be by him delivered to the custody of the United States marshal for the Western District of Oklahoma, to remain in his custody until said cause No. 6554 in the United States District Court for the Western District of Oklahoma, shall be disposed of, and after the disposition of said cause, if the said Henry L. Guy shall have been convicted in said court, then after the satisfaction of the judgment and sentence pronounced against him in said court that he be returned to the penitentiary at McAlester for the purpose of serving out the sentence as rendered by the district court of Oklahoma county in the case hereinabove referred to. * * *"
Section 10, art. 6, of the state Constitution, in part provides:
"The Governor shall have power to grant, after conviction, reprieves, commutations, paroles, and pardons for all offenses, except cases of impeachment, upon such conditions and with such restrictions and limitations as he may deem proper, subject to such regulations as may be prescribed by law. * * *" *5
The authority of the Governor to release a convict undergoing sentence is found only in the foregoing section of the Constitution. The exercise of this authority of the Governor shall be attested by the secretary of the state under the great seal of the state. Section 18, art. 6, Const.; Ex parte Jones,
The purpose of this regulation obviously is to authenticate his acts and make same a matter of record, so that the authenticity and verity of his acts may not be called in question. The instrument signed by the Governor above referred to is neither a reprieve, commutation, nor parole. It purports to release petitioner from confinement in the penitentiary and to deliver him to another sovereignty absolute and final, except that, if prisoner shall be convicted in the federal court and shall serve his sentence, he shall then be returned to the state authorities. It does not provide that, if acquitted in the federal court, he shall be returned. When convicted in the federal court, petitioner might have been sentenced to incarceration in a federal penitentiary beyond the limits of this state. Surely it cannot be contended, that in such case, at the expiration of his sentence he could have been brought back to this state and again incarcerated in the penitentiary to serve the remainder of his sentence under the judgment in the state court. In the case of Ex parte Youstler,
"This suspension of sentence is granted upon the recommendation of the board of parole, and is for the purpose of releasing the prisoner to the authorities of Livingston county, state of Missouri, for trial under pending indictments, it being expressly understood that the state of Missouri assumes all expense of his removal and in case of failure to convict the said T.M. Saunders shall be returned to the penitentiary of this state for the completion of his sentence, such return to be without expense to this state. `The Governor of the state may for cause revoke the foregoing and direct the further execution of the sentence or make other or further order in the case, or modification thereof.'"
This instrument is referred to in a concurring opinion as a "legal curiosity" and one not within the authority of the executive power. The court in syllabus 4 there holds:
"Instrument whereby Governor, on demand for surrender of one who was serving sentence for crime committed in the state, by Governor of other state where he was wanted for other crime committed in such other state, suspended the further execution of the judgment whereby he was sentenced on the condition that he be returned to the state for completion of his sentence on other state's failure to convict him, held a waiver of the right to require the prisoner to complete his sentence before surrender to other state, being in the nature of a pardon which, notwithstanding the condition stated, became absolute upon his surrender to the authorities of other state."
In the body of the opinion, it is said:
"* * * The question arises, therefore, as to whether *7
it may not properly be regarded as in the nature of a pardon. It released the appellant from the punishment he was undergoing in Iowa, in order that he might be prosecuted for an offense in Missouri. Notwithstanding the condition of this release, we are of the opinion that it became absolute under his surrender to the authorities of this state. If so, then it was unquestionably in the nature of a pardon, and hence the objections here made to the action of the Governor must go for naught. It was so held in Re Hess (
The power to grant pardons and paroles carries with it the power to make a conditional pardon or parole. It is generally said that the Governor in exercise of this power may impose conditions which are not illegal, immoral, or impossible of performance. Sibenaler v. State,
The writ is awarded, and petitioner discharged.
DOYLE, P.J., and DAVENPORT, J., concur.