99 Tenn. 201 | Tenn. | 1897
Defendant was convicted in the Circuit Court of Gibson County of an assault and bat
The pardon, among other provisions, contains the following: “ . . . do hereby pardon the said John Spellings of the said offense, so far as relates to the fine and term of imprisonment yet unexpired, but in no [other] way interfering with the judgment and sentence of said Court, and do authorize and direct that said John Spellings be forthwith liberated and put at large.”
In the case of Geo. Smith v. State, 6 Lea, 637, it, was held that the pardon of the Governor cannot
In some states it is held that a pardon granted and pleaded before conviction, bars a judgment for Court costs and witness fees. White v. State, 42 Miss., 636; Commonwealth v. Hitchman, 46 Pa. St., 357; Commonwealth v. Ahl, 43 Pa. St., 53; Fischel v. Mills, 15 L. R. A., 396, note. Under the Constitution and laws of Tennessee, however, the Governor can only pardon after conviction. Smith v. State, 6 Lea, 638. But while the pardon does not relieve from costs, nor discharge the defendant from his liability for them, still the question remains, can he be required, after pardon, to pay, secure, or work them out, or, in default, be committed or continued in confinement?
The case now before us is a workhouse sentence, under the Act of 1891, Ch. 123, Sec. 12. Shannon, § 7417. This section is in these words: “In all cases where a person is by law liable to be imprisoned in the 'county jail for punishment, or for failure to pay a fine and costs, or costs only, as the case may be, in misdemeanor cases, and in felony cases where the punishment has been commuted
Under the Code of 1858, §§ 5271, 5272, and the Act of 1859-60, amending those sections, a person convicted of a misdemeanor, whose term of imprisonment had expired, could obtain a release, though he had not paid the costs of the prosecution or the fine imposed, by taking an oath of insolvency. The consequence was that it became a constant practice for criminals to escape the payment of costs by taking the oath, until it became a mere matter of course. To remedy this evil, among others, the workhouse system was inaugurated, and the oath of insolvency was done away with, so that costs, as well as imprisonment and fine, must be satisfied before ’the criminal was entitled to his discharge. Durham v. The State, 5 Pick., 726.
While the Governor, under the pardoning prerogative, has the power to release fines and set aside imprisonment when designed as punishment or penalty, his pardon does not extend to costs — a matter which is exclusively within the province of the Legislature. State v. Henley, 98 Tenn., 667. The pardon in this case does not attempt to do so. It provides that the defendant is pardoned of the of
We are not called upon to decide what is the effect of such pardon in felony cases when the convict is in the penitentiary, and in which the sentence of the Court does not direct that he be confined until the costs are paid, as is done in .workhouse sentences like the present. We have been cited to the cases of Ex parte Gregory, 56 Miss., 654, and Ex parte Purcell, 31 S. W. Rep., 738 (Arkansas case), as holding that judgment for costs cannot be enforced by imprisonment in case of par
The judgment of the Court below must be affirmed.