The petitioner, who was undergoing imprisonment in the State prison under judgment of conviction of the crime of murder in the second degree, was, by the governor of the State, granted a pardon upon condition that he forthwith leave the State and never return thereto. The governor, it seems, was inducеd to grant the pardon upon representations made to him to the effect that the prisoner was partially idiotic, that his parents resided in Poland and would take care of him if permitted to go to them, and that he had brothers of wealth in this State who would furnish him with the means necessary to take him therе and would thereafter provide for his support. The pardon was given by the governor to the wardеn of the prison to be by him delivered to the priscner, whenever the same was properly aсcepted. Upon its receipt the warden tendered the pardon to the prisoner, who rеfused to accept it unless it should be stipulated that he should be permitted to remain in the State for the period of eighty days after his discharge from the prison. The result of course was that he remained incarcerated. Some weeks afterward he indicated to the ivarden—who, meanwhile, hаd retained the pardon in his possession—his willingness to accept it and to faithfully perform the cоnditions upon which it was granted. Upon this representation and upon the prisoner’s promise to lеave the State on the train going east the following evening, the warden handed him the pardon and released him from custody. His brothers thereupon offered him sufficient funds to take him to his parents in Poland, but he refused to go as he had promised, but declared his intention to remain in California unless his brothers gave him one thousand dollars. Thereupon he was again taken into custody by the warden, and now claims the right to be discharged on habeas corpus.
We think it clear that he is not entitled to be so dischargеd. There is no doubt that the governor was authorized to grant the pardon upon the conditions statеd, for he is by the Constitution
The pardon in question contained two conditions—one, that the prisoner should forthwith leave the State; the other, that he should never return to the State. The one was a conditiоn precedent, the other, a condition subsequent. That is to say, the governor in effect said to the prisoner: By virtue of the power vested in me by the Constitution I exempt you from the punishment the law inflicts fоr the crime you have committed, provided, you forthwith leave the State, and provided, further, you never return to the State. Until he actually leaves the State the pardon does not become operative at all. This must be so from the very nature of thе first condition attached to it. "When that condition' is performed, the pardon becomes operative, but it nevertheless remains subject to be defeated by the breach of the condition subsequent, to wit, by the prisoner’s subsequent return to the State. (1 Bishop on Criminal Law, § 760; Ex parte Wells,
Let the prisoner be remanded to the custody of the warden.
Shaepstein, J., Myeicic, J., and Thoenton, J., concurred.