In re Whalen

| N.Y. Sup. Ct. | Jun 29, 1892

Van Brunt, P. J.

The appellant was sentenced to the state’s prison on the 30th of June, 1882, for a term of seven years; and on the 31st of March, 1887, having earned two years’ and three months’ commutation of sentence for his good conduct, the governor commuted his sentence, annexing a condition to the effect that if, during the period between the date of his discharge by reason of such commutation and the date of the expiration of the full term for which he was sentenced, the prisoner should be convicted of any felony, he should, in addition to the penalty which should be imposed for said felony, be compelled to serve in the state prison or penitentiary in which he may be confined, for the felony for which he was so convicted, the remainder of the term without commutation, which he would have been compelled to serve but for the commutation of his sentence. On the 19th of December, 1888, the prisoner was again convicted and sentenced for the term of two years to state prison for the crime of burglary in the third degree, which time would expire without commutation on the 21st of December, 1890. The defendant was not discharged at that time, it being claimed that he, having been resentenced for a new offense within the period of two years and three months from his said commutation, must serve during said term of two years and three months, in addition to the new sentence of two years, as prescribed by Laws 1886, c. 21, § 14.¹ A writ of habeas corpus was thereupon sued out, which was dismissed by the court below, and from the order thereupon entered this appeal is taken.

It might not be at all necessary to add anything to the very satisfactory, opinion rendered by the court below, were it not for the claim of the appellant that one of the questions involved in this appeal was not touched upon. It is claimed that two questions are involved: First, is the law of 1886 constitutional? and, secondly, if so, does it apply to the present case? It is admitted that the judge below passed upon the constitutionality of the law. But it is urged that he did not pass upon the question of its application to the present case. Upon this point, therefore, it may be necessary to say a lew words. It appears, upon an examination of the statutes, that in 1862 the system of commutation was inaugurated in this state, and that it was provided that every convict confined in any state prison or penitentiary in the state, under sentence on conviction for felony, might earn for himself a commutation or diminution of the term of his sentence; and the governor might thereupon, in his discretion, direct the abatement or deduction of the term of sentence of said convict of the number of days of commutation or diminution thereof which said convict should have earned. In 1868 an act was passed which was substantially a re-enactment, except that it extended the time of commutation, the discretionary power remaining in the executive, as before. In 1864 a more liberal provision for prisoner’s good conduct was made, the discretionary power still vested in the governor, and so on down to the time of the prisoner’s conviction and sentence.' Then, in 1886, after the prisoner had entered upon the service of the first term, and prior to the time of his discharge under said sentence, the act was passed under which the governor commuted the sentence in question. It is to be observed that, tinder the acts prior to the act of 1886, it was entirely discretionary with the-governor whether he should or should not act upon the recommendation of commutation: and" therefore the prisoner had no vested right in his commutation at the time of the passage of the law of 1886. It is conceded, and not necessary to discuss that question here, that the governor, in the exercise of his pardoning power, has the right to áffix any terms to the pardon which he may see fit; and therefore if, under the previous acts, the governor had attached the condition in the exercise of his pardoning power, which he did exercise, to the commutation of the petitioner, it would have been entirely authorized and within his discretion. Now, the petitioner having no vested right in this commutation, if he is not satisfied with the condition upon which it is granted, need not accept it. By the act of 1886 he was not deprived of anything to which he had been previously entitled, only it was, perhaps, made more obligatory upon the governor to act than had been .the case by the previous legislation. Now, if the legislature had no power to call upon the governor to act under these circumstances, in the commutation of this sentence, then the result would be that, if the governor did not act, the prisoner could not have been discharged, and if the governor did act it is conceded he had a right to impose such conditions as he might see fit. Assuming the law of 1886 to be unconstitutional and inapplicable to the petitioner’s case, then the governor would be acting under the previous laws, where the discretion rested absolutely with him whether he would commute the sentence or not, and, such being the case, he had a right to impose such conditions as he might see fit. Irrespective of the act of 1886, the power of the governor to commute or pardon was unlimited, and the provisions of the act in question were no restriction upon that power; and, if the governor assumed to act in pursuance of the provisions contained in that act, it was a matter entirely within his own volition, and not at all compulsory upon him. Therefore it is apparent that the petitioner had no vested right in anything, and the act of 1886 took nothing away from him, and did nothing in any respect to curtail the constitutional powers of the executive. It is difficult to see, therefore, how the petitioner has suffered any wrong; and the order appealed from should be affirmed, with costs. All concur.

1 Laws 18S6, c. 21, § 14: “The governor shall, in commuting the sentences of convicts as provided for in this act, annex a condition to the effect that, if any convict so commuted shall, during the period between the date of his or her discharge, by reason of such commutation, and the date of the expiration of the full term for which he or she was sentenced, be convicted of any felony, he or she shall, in addition to the penalty which may be imposed for such felony committed in the interval aforesaid, be compelled to serve in the prison or penitentiary, in which he or she may be confined, for the felony for which he or she is so convicted, the remainder of the term, without ■commutation, which he or she would have been compelled to serve but for the commutation of his or her sentence, as provided for in this act. ”