State v. Yates

183 N.C. 753 | N.C. | 1922

Adams, J.

In Holley’s case, Hoke, J., said: “Our statute law has made no provision for appeal from a judgment in habeas corpus proceedings, except in cases concerning the care and custody of children. Rev., 1854; C. S., 2242. Therefore, it is that when, on such a hearing a question of law or legal inference is presented, and the judgment therein involves the denial of a legal right, it may be reviewed by certiorari, under and by virtue of the power conferred on this Court by the last clause of section 8, Article IV, of our Constitution: ‘And the Court shall have power to issue any remedial writs necéssary to give it general supervision and control over the proceedings of the inferior courts.’ ” In re Holley, 154 N. C., 164; S. v. Lawrence, 81 N. C., 523; S. v. Herndon, 107 N. C., 934; In re Croom, 175 N. C., 455; In re Fountain, 182 N. C., 49. For this reason the defendant’s appeal must be dismissed; but as the record presents a question of public importance and general interest, we will regard it as one of the exceptional cases that warrant consideration of the defendant’s contention upon the merits. In re Sermons Land, 182 N. C., 127; Cement Co. v. Phillips, ibid., 440.

The Constitution confers upon the Governor the power to grant reprieves, commutations, and pardons, except in cases of impeachment, upon such conditions as he may think proper, subject to such regulations as may be provided by law relative to the manner of applying for pardons. Constitution, Art. III, sec. 6. In the exercise of the authority granted in the provision last cited the General Assembly has prescribed certain statutory duties which are to be observed by the applicant. Every application for pardon must be made to the Governor in writing, stating the grounds upon which executive clemency is sought, and must be signed by the applicant, or by some person in his behalf; and the Governor may grant a pardon, subject to such conditions, restrictions, and limitations as he may consider proper and necessary. C. S., 7642, 7643. When the prisoner violates the conditions which he must observe or perform, the Governor, “upon receiving information of such violation,” shall forthwith cause him to be arrested and detained until proper examination can be made; and if it appears by his own admission, or by such evidence as the Governor may require, that he has violated the condition of his pardon, the Governor shall order him remanded and confined for the unexpired term of his sentence. C. S., 7644. It is worthy of note, in this connection, that neither the Constitution nor the statute law authorizes a “parole,” unless the word be construed as importing some form of conditional pardon. The advisory board of parole created by section 7749 merely determines whether in their judgment a person confined in the State’s Prison is a proper subject of imrole under a conditional pardon. Section 7752 et seq. We therefore regard- it clear that Governor Bickett’s order must be interpreted as a pardon on condition that the defendant should comply, with the terms imposed. So the instant and only question is this: Did Governor Morrison have the legal right to revoke Governor Bickett’s conditional pardon after the time fixed in the original sentence had expired?

“It seems agreed that the king may extend his mercy on what terms he pleases, and, consequently, may annex to his pardon any condition that hé thinks fit, whether precedent or subsequent, on the performance whereof the validity of the pardon will depend.” Bacon’s Abr., 412. Under the modern law the power to grant a conditional pardon is generally subject to the limitation that the conditions imposed must not be illegal, immoral, or impossible of performance. The conditions contained in the parole granted by Governor Bickett cannot be impeached on either of these grounds; and the defendant by accepting the pardon accepted also the conditions subsequent, a breach of which avoided the pardon and canceled his right to further immunity from punishment. In re Williams, 149 N. C., 436; Fuller v. State, 122 Ala., 32. In other words, when snob breach by the defendant was duly determined, and his conditional pardon thereby avoided, the defendant at once became subject to rearrest, although the time for which he had been sentenced had expired. Any other process of reasoning would disregard the primary fact that the essential part of the sentence is the punishment and not the time when the punishment shall begin or end. This doctrine is clearly stated in State v. Horne, 7 L. R. A. (N. S.), 719. There the defendant was convicted in 1898 of assault with intent to murder, and sentenced to live years imprisonment; in 1901 a conditional pardon was granted; and in 1906, “long after the term of years of his original sentence had expired,” the Governor of the State revoked the pardon and the defendant was recommitted to prison. The defendant contended that his imprisonment was illegal, and the lower court discharged him on the ground that the alleged breach of the conditions occurred after the period of his sentence had expired. The Supreme Court reversed the judgment, and, among other things, said: “The time fixed for executing a sentence, or for the commencement of its execution, is not one of its essential elements, and, strictly speaking, is not a part of the sentence at all. The essential portion of the sentence is the punishment, including the kind of punishment and the amount thereof, without reference to the time when it shall be inflicted. The sentence, with reference to the kind of punishment and the amount thereof, should, as a rule, be strictly executed. But the order of the court with reference to the time when the sentence shall be executed is not so material. Expiration of time without imprisonment is in no sense an execution of the sentence. Hollon v. Hopkins, 21 Kan., 638; Dolan’s case, 101 Mass., 219; S. v. Cockerham, 24 N. C. (2 Ired. L.), 204; Ex parte Bell, 56 Miss., 282; In re Edwards, 43 N. J. L., 555; 38 Am. Rep., 653, note.” And further: “The defendant in error accepted the conditional pardon, thereby securing his release from imprisonment; and he is bound by its legal conditions and limitations. The provisions of the pardon are, in effect, that if at any time during his life the defendant in error shall fail to observe its conditions, the pardon shall be null and void, and he shall be arrested to serve out the remainder of his sentence of imprisonment that he has not already actually suffered. The violation at any time of the conditions of the pardon renders it, by its terms, null and void, and the status of the defendant in error is as though he had never received the conditional pardon. If, when the conditions of the pardon are violated, a portion of the quantum of imprisonment fixed by the sentence has not been suffered or served, the party should be returned to serve the> remainder of his time of imprisonment, as stipulated in the terms of the pardon; and, besides this, the pardon, by the breach of its conditions, is rendered in law void; and, if tbe sentence of imprisonment bas not been fully executed, tbe law imposes tbe obligation to complete tbe service of imprisonment fixed in tbe judgment of conviction and sentence of punishment. Tbe pardon may, as one of its restrictions and limitations, designate tbe time for tbe observance of its conditions; but, wben tbe conditions are violated, tbe pardon becomes void in law, and tbe party is subject to tbe unsatisfied portion of tbe sentence as tbougb no pardon bad been granted.”

In S. v. Barnes, 32 S. C., 14, tbe same question arose, and McIver, J., said: “While it is quite true that tbe term of two years imprisonment, to wbicb tbe defendant bad been sentenced in 1883, bas long since expired, yet it is equally true that tbe defendant bas not yet suffered imprisonment for that length of time; and as the pardon which he pleads bas been adjudged insufficient to relieve him from suffering the whole punishment originally imposed upon him, it follows, necessarily, that he is still liable to be required to complete the term of imprisonment originally imposed, just as if be bad escaped during that term. And such is the clear result of the authorities, both English and American.”

These and other decisions fairly illustrate tbe principle wbicb we think should be applied in tbe case at bar. There are others wbicb apparently are in accord with tbe defendant’s contention, but our researches have convinced us that the conclusion we have reached is supported by tbe better reasoning and authority. Fuller v. State, 122 Ala., 32; S. v. McIntire, 59 Am. Dec., 576 N; Ex parte Hawkins, 61 Ark., 321; S. v. Chancellor, 47 Am. Dec., 557; S. v. Smith, 19 Am. Dec., 679.

In our opinion the defendant cannot maintain bis defense of exemption from rearrest on tbe ground that tbe breach of bis parole took place after tbe expiration of tbe time for wbicb be was originally sentenced.

The appeal is dismissed.