12 S.E.2d 339 | Ga. | 1940
1. Under the express terms of the conditional pardon granted, it was revocable by the Governor without notice or hearing, on violation of its conditions.
2. Whether or not the later executive order purporting to revoke the pardon was ineffectual for that purpose, in that it failed to show a breach of any condition, still, under the terms of the grant, action by the Governor was not made an exclusive method of determining an issue as to breach; and if any condition was in fact broken, the pardon was thereby rendered void, regardless of action by the Governor. If the applicant was entitled to a trial on the question of breach, this right was satisfied by the trial before the judge in the habeas-corpus case.
3. The evidence introduced by the respondent, for the purpose of showing that the applicant had rendered the pardon void by the commission of a criminal offense in violation of its conditions, was not subject to objection on the ground that it was irrelevant and immaterial. The court did not err in remanding the applicant to custody.
The plaintiff alleged, in his application for the writ, that since the granting of such conditional pardon he has not violated any of the laws of the State of Georgia, or of any other State, or of the United States; but no evidence was introduced in support of this averment, and no other evidence whatever was introduced by the applicant. The facts hereinbefore recited are taken from the allegations in the petition and admissions in the response. The petition further alleged in effect, that, because of the act of the Governor in revoking such conditional pardon without notice or hearing, the present "detention of petitioner by the respondent is illegal and contrary to law, and denies to petitioner the rights and guaranties provided for him in the constitution of the State of Georgia and in the constitution of the United States, in that petitioner is being denied his liberty without due process of law" petitioner being a citizen of the State of Georgia and of the United States.
On the trial of the case, the respondent offered in evidence an accusation filed in the criminal court of Fulton County, together with a plea of guilty entered thereon, showing that the applicant was, on March 11, 1940, convicted of the offense of playing and betting for money at a game played with cards, alleged to have been committed on February 8, 1940. This evidence was admitted over objection that it was "immaterial and irrelevant to the issues involved." In the bill of exceptions, error is assigned on the admission of this evidence, and on the final judgment denying the writ of habeas corpus and remanding the prisoner to custody. *204
Attached to the brief filed in this court by counsel for the plaintiff in error is a certified copy of an indictment returned in Fulton superior court, alleging that Ben Muckle did, on February 20, 1940, commit the offense of operating a lottery in that county, and of a verdict thereon, dated June 25, 1940, finding the defendant not guilty. Neither the bill of exceptions nor the record contains any reference whatever to this document or to any fact mentioned therein.
It seems that where a pardon is unconditional and is duly delivered and accepted, it is not subject to revocation. See Code, § 2-2612; Dominick v. Bowdoin,
On the first question, while it may be true that if a conditional pardon is susceptible of more than one interpretation is should be construed most favorably to the grantee (Crooks v.
Sanders,
Under the second question, however, it is contended in effect that even if the Governor did in fact reserve the power to revoke the pardon without notice or hearing, he could do so only in conformity with the terms and conditions of the original order; and that the order of revocation was ineffectual for this purpose, since it appeared therefrom only that the applicant had been "apprehended," and not that he had actually violated any law. In the view which we take of the case we do not deem it necessary to construe the second order as to its efficacy for the purpose indicated. The plain meaning and intent of the original pardon was that it was conditioned upon the future good behavior of the grantee; and even assuming that such good behavior should be determined only by the standard of the criminal law, the pardon would become void on violation of its terms, and this would be true whether or not it was actually revoked by the Governor in accordance with the authority reserved by him. "If the condition imposed is subsequent in nature, the pardon takes effect as soon as it is delivered and accepted, but any subsequent violation of the condition will work a forfeiture of the pardon and will render the grantee liable to rearrest and to recommitment under the original sentence." 20 Rawle C. L. 569, § 58. See also 46 C. J. 1202, § 61. Under the terms of the original pardon as granted, and in the light of the record in this case, the real question is not whether the second executive order was itself valid as a revocation, but is whether there was *206
in fact such a breach of condition as to render the pardon void. This is true for the reason that while the pardon was conditional and reserved to the Governor the power of revocation in stated events, the condition was "future good behavior;" and under a proper interpretation of the entire order the reservation as to action by the Governor was not made an exclusive method of determining an issue as to breach. See 20 Rawle C. L. 574, § 62. In Henderson v. State,
In Ex Parte Davenport,
Accordingly, if the applicant in the present case actually violated the terms of his conditional pardon, he was subject to rearrest and imprisonment under the original sentence, irrespective of whether the Governor's order of revocation determined the matter of breach, or was itself valid for the purpose for which it was issued; and if the applicant was entitled to a trial in court on the question of breach, the trial before the judge in the habeas-corpus case which is here under review constituted a satisfaction of this right. The applicant alleged that he had committed no offense since the grant of the pardon, but introduced no evidence whatever in support of this averment. We do not have before us any question as to burden of proof, because the respondent showed affirmatively and without dispute that the applicant had in fact violated the law of this State by playing and betting for money at a game played with cards, on February 8, 1940, thus establishing that the pardon had become null and void by breach of condition subsequent.
Thirdly, it follows from what has been said that the court did not err in admitting the evidence offered by the respondent, showing a conviction of the applicant of the offense of gaming, over objection that such evidence was irrelevant and immaterial. The conditions of the pardon were not limited to any particular type of offense, although the offense of gaming and maintaining a lottery may be kindred; nor was this evidence inadmissible because the second order of the Governor referred only to the offense of maintaining a lottery. As stated above, the question in the habeas corpus trial was whether the conditional pardon had been rendered *208 void by commission of any offense against the laws of this or any other State or of the United States.
The copy of indictment and of verdict of not guilty attached to the brief of counsel for the plaintiff in error not having been offered in evidence, and being no part of the record or bill of exceptions, can not be considered for any purpose. Under the evidence adduced, it appeared that the restraint of the applicant was not illegal. The court did not err in refusing the writ of habeas corpus. See Johnson v. Walls,
Judgment affirmed. All the Justices concur.