297 N.W. 321 | Minn. | 1941
The sole question presented by this appeal is whether the prior conviction in California may be used against the defendant as a basis for double sentence under the habitual criminal act notwithstanding *108 the pardon. Generally speaking, there is a diversity of authority upon the question, the courts of Virginia, Ohio, Oklahoma, Louisiana, and Texas taking the view that the pardon blots out guilt and wipes out the offense, which is then regarded as never having been committed; whereas New York, Kentucky, and Washington, besides California, are of the opinion that the pardon has no such effect and that the defendant may be adjudged a prior offender and given the increased punishment as such.
We think that on the narrow question here before us the supreme court of California has answered it by holding that a pardon in that state does not effect the blotting out of the offense but is immaterial and no bar to a conviction under the habitual criminal act. It is true that in the cases from that state which have been called to our attention the pardons were by governors of other states than California; but from the language used in People v. Biggs,
"We are unable to see how the pardon, relieving the offender from the effects or disabilities of his first crime, can in addition prevent the normal application of the statute punishing him for a subsequent offense. In its provisions for increased punishment for prior offenders, the legislature could doubtless make an exception in favor of persons pardoned, if it had reason to believe that such persons, though found guilty of a subsequent offense, were no more dangerous to society, because no more criminal in character, than persons first convicted. It has not seen fit to do so, and unless it does,this court cannot usurp the legislative function of determiningthe appropriate punishment for offenders coming within thestatutory classifications." (Italics supplied.)
In the Dutton case,
The holding of the California court is strongly supported by the courts of New York in People v. Carlesi,
"The pardon of this defendant did not make 'a new man' of him; it did not 'blot out' the fact or the record of his conviction, and of course, the Supreme Court, in deciding that the Congress could not impinge upon the pardoning power of the Executive did not intend to hold that the Executive could blot out a solemn record of the judicial branch of government. (See Roberts v. State of New York,
This view is supported, too, by the modern holdings that a pardon does not so wipe out an offense that it may not be used as impeachment against a witness, although, the conviction being shown, the pardon may also be shown. 4 Wigmore, Evidence (3 ed.) § 1116.
The philosophy of the law relative to the effect of a pardon has progressed to a more practical consideration of actualities since the opinion in Ex parte Garland, 4 Wall. 333,
The conviction below is affirmed, and the sentence is ordered executed.
In United States v. Wilson, 7 Pet. 150, 160,