Michael v. State

40 Ala. 361 | Ala. | 1867

BYRD, J.

It may be conceded that the governor had the authority to issue his proclamation of pardon, bearing date February 13, . 1866, under the act approved December 14, 1865. — Pamphlet Acts, 1865-6, p. 106. But that act was repealed by the adoption of section 766 of the Penal Code, which went into operation the 1st day of June, 1866, which was prior to the trial of this cause in the court below. At the September term, 1866, of the circuit court, two pleas were filed by the appellant; one was, in substance, the proclamation of pardon issued by the governor, above referred to, and the other was the plea of not guilty. The cause had been continued at the spring term, 1866, by the State, and appellant did not then plead his pardon or other plea. It appears that the offense with which appellant was charged, was committed in 1862; and the proclamation of the governor embraces all offenses, except rape and murder, committed between the 13th day of April, 1861, and the 20th July, 1865.

[1.] The counsel for the appellant contends, with much earnestness and ability, that the State of Alabama being in rebellion against the national government, at the commission of the offense, therefore all law was suspended in the State, and appellant was not responsible for the offense with which he is charged, and had the right to redress his own wrongs. We cannot assent to such a conclusion, or any part thereof. It is not supported by any respectable modern judicial authority, and is wholly at variance with the positions and authorities taken and cited in the opinion of this court, rendered at this term, in the case of Watson and Wife v. Stone.

[2.] It is also insisted that a pardon, granted before conviction, puts a stop to all further proceedings, and relieves the prisoner from the payment of costs. The weight of authority, English and American, seems to us to incline in favor of the proposition, that if such pardon is issued by the executive department of the government, it must be specially pleaded, to entitle the prisoner to his discharge from all the penalties of the law and the costs of the suit not then taxed against him; and that such plea is taken as evidence of the acceptance of the pardon, in the absence of any other evidence thereof. — United States v. Wilson, 7 Peters, 150; Brikenden’s case, Cro. Car. 9; Baldoy v. Packard, Cro. Car. 47; The King v. Rodman, Cro. Car. 198; 4. Hawk. 352, § 41; The State v. Farley et al., 8 Blackf. 229; Anglea v. Commonwealth, 10 Gratt. 696. It seems also to be settled, that a prisoner must plead specially all pardons, except such as may be granted by the legislative department of the government. — Foster’s Cr. Law, 43; Swayne v. Rodgers, Cro. Car. 32; Bell’s case, Cro. Car. 449; 1 Baldwin, 91; 4 Hawk. 357, §§ 59-60; 359, § 64.

It has also been held, that where it is necessary to plead a pardon, it cannot be pleaded together with the plea of not guilty, unless it be of a date subsequent to the time of the pleading such issues; if otherwise, it is waived by it.— 4 Hawk. 360, § 67; Bacon’s Abr. 414; 5 Com. Dig. 247; 1 Bish. COr. Pro. § 596.

But, however this may be, under the liberal system of pleading allowed in this country, we proceed to dispose of this branch of die case on other grounds, in addition to the above. Upon the plea of “not guilty”, issue was joined by the State’s attorney. Upon this plea, the prisoner submitted his cause to the jury,"without objection, and there is no evidence in the bill of exceptions which shows that the prisoner proved, or attempted to prove, the special plea. We do not intimate that this was necessary to be proved to the jury. The jury found a verdict against the prisoner, on the plea of “not guilty ”, and assessed a fine against him, and also found that the offense was committed within the time alleged in the special plea; and upon this verdict the court entered a judgment, in substance, for the costs of suit. If a prisoner, after pleading a pardon, pleads not guilty, and goes to trial upon it without objection, thereby insisting on his innocence, and the jury returns a verdict of guilty thereon, it is not error for the court to give judgment against him for costs.

[3.] We further hold, that the act of December, 1865, being repealed before the trial and the filing of the pleas, and before any acceptance by the prisoner of the pardon, so far as the record discloses, the appellant could not avail himself of the protection of the pardon, by an acceptance at that time; and this view is strengthened by the pleas, which, in effect, allege that he did not need or claim the pardon offered, but preferred to stand on his asserted innocence. In the case of The United States v. Wilson, (supra,) Chief-Justice Marshal, in the opinion of the court, says: “A pardon is a deed, to the validity of which delivery is essential; and delivery is not complete without acceptance. It may, then, be rejected by the person to whom it is tendered, and if it be rejected, we have discovered no power in a court to force it on him.” Upon the pleadings, evidence, verdict, and law, we hold, that the judgment of tbe court below was as favorable to the appellant as he had a right to claim.

"We now proceed to dispose of the exceptions taken to the several charges given by the court. The bill of exceptions does not purport to set out all the evidence introduced on the trial. It sets out what the evidence tended to show, but does not purport to set out all that it tended to show. In this state of the record, we can perceive no error in the charges given by the court, which operated any detriment to the prisoner. It devolves upon him to show error affirmatively. So far as the charges refer to the matter of the special plea and the pardon, it is very evident that whatever errors were committed, if any, were without injury to the appellant.

Let the judgment of the court below be affirmed.