166 F.2d 887 | 3rd Cir. | 1948
The question presented by the instant appeal is a narrow one. The relator, Forino, a citizen of Italy, admitted to the United States for permanent residence, on December 5, 1932, and within five years after his entry, pleaded guilty in the Court of Oyer and Terminer, Allegheny County, Pennsylvania, to an indictment charging him with murder. The court fixed the degree of his guilt as murder in the second degree and sentenced him to imprisonment for 3 term of not less than eight nor more than sixteen years. On January 11, 1933, a warrant for Forino’s arrest was issued by the Secretary of Labor to deport him as an undesirable alien within the purview of Section 19 of the Immigration Act of 1917, as amended, 39 Stat. 889, 8 U.S.C.A. § 155, which provided in pertinent part that «* * * any a|jen who, after May 1, 1917, is sentenced to imprisonment for a term of one year or more 'because of conviction in this country of a crime involving moral turpitude, committed within five years after the entry of the alien to the United States * * * shall, upon the warrant of the Secretary of Labor, be taken into custody and deported: * * * Provided further, That the provision of this section respecting the deportation of aliens convicted of a crime involving moral turpitude shall not apply to on? who has been pardoned * *
The warrant provided, as specified in the Act, that its execution should be deferred until Forino was released from ■ imprisonment. After serving eight years Forino was paroled. Shortly thereafter, and on July 13, 1945, he petitioned the Board of Immigration Appeals for rehearing, asserting that he was no longer subject to deportation by virtue of our decision in Perkins v. United States, 3 Cir., 1938, 99 F.2d 255. The Board rejected this contention and Forino abandoned it. Two weeks later Forino was taken into custody for deportation, but he sued out a writ of habeas corpus. The writ was discharged and though Forino appealed to this court he did not press the appeal.
On December 6, 1945, the Governor of Pennsylvania commuted Forino’s maximum sentence from sixteen years to thirteen years and ten days, the sentence expiring on December 15, 1945. Forino then filed another petition for rehearing with the Board of Immigration Appeals, alleging that by reason of the commutation of his sentence he was no longer subject to deportation under Perkins v. United States, supra. The petition for rehearing was denied and Forino was again taken into custody. He again procured a writ of habeas corpus and the court below discharged him from custody. The Officer in Charge has appealed.
Forino did not contend in the court below, nor does he contend in this court, that the commutation of his sentence by the Governor brings him within the purview
It must be conceded at the outset by the appellant that if Forino had received a legislative pardon, or presently possesses .the status of a person who is entitled to one, he cannot be deported and is entitled to his liberty. This issue was settled for this circuit by our decision in Perkins v. United States, supra. We are unable to perceive, however, how Forino is entitled to such a status. Forino’s position in respect to a pardon must, of course, be determined by the law of Pennsylvania. Under that law, as indeed under that of the other States and of the United States, a pardon is simply an act of grace.
The Legislative Pardons. Act of 1860 provided that when the convict “hath endured or shall endure the punishment” to which he has been sentenced, he should be pardoned. The flaw in Forino’s reasoning lies in the fact that the access to legislative grace was withdrawn by an act of
Compare the circumstances of the case at bar with those set out in Commonwealth v. Greenawalt, 347 Pa. 510, 32 A.2d 757. There a wife sought to issue execution under the Act of May 24, 1923, P.L. 446, 48 P.S. Pa. § 137 et seq. to sell certain property owned by herself and her husband by the entireties to enforce a judgment entered in her favor on a support order. The property had’ been conveyed to husband and wife about seven weeks prior to the passage of the Act of May 24, 1923. The Supreme Court of Pennsylvania held that the statute could not be construed retroactively in order to permit the execution. The cited case is clearly distinguishable from that at bar. We can find no authority which aids the relator
To sustain Forino’s point one would have to take the position that any sentence of imprisonment imposed prior to the effective date of the repealing act carried with it a right to a legislative pardon. This would constitute judicial legislation and would change the terms of the Legislative Pardons Act making the issuance of the pardon dependent on the imposition of the sentence on the criminal and not on the criminal having endured his punishment. No pro tanto effect can be ascribed to the Legislative Pardons Act. Either a convict is entitled to the benefits of the Act or he is not entitled to them. He cannot become entitled to some part of a pardon because he had served some part of his sentence at the time of the repeal.
The second point made by Forino is that if the repealing act be construed to deprive him of the legislative pardon it will operate as an ex post facto law. This-point requires but little discussion. In making the argument the relator confuses-the nature of punishment and the nature of a pardon. He takes the broad position that any law which alters his position to his disadvantage is necessarily ex post facto. It must be conceded of course that any law which alters the punishment or inflicts a greater punishment than the law annexed to the crime when committed may be characterized properly as ex post facto. This was the ruling of the Supreme Court in Calder v. Bull, 3 Dali. 386, 390, 391, 1 L. Ed. 648.
But the repeal of the Legislative Pardons Act did not change the punishment or inflict a greater punishment on Forino. Under our view he could not become entitled to the pardon until he had endured the punishment prescribed. When he had endured his punishment the grace previously afforded by the Legislative Pardons Act had been withdrawn. We can find no Pennsylvania authority or that of a tribunal of any other jurisdiction which supports the relator’s position in -this regard. Even if the constitutional prohibition against ex post facto enactments be construed broadly to include civil laws
The judgment of the court below will be reversed.
The repealing act became effective on September 1, 1939, by virtue of art. I, Section 4 of the Act of May 28, 1937, P.L. 1019, 46 P.S.Pa. § 504, since no effective date was specified by the Legislature of Pennsylvania for the Act of June 24, 1939. The act last mentioned provides that all laws enacted at a regular session of the Legislature, with certain immaterial exceptions, shall be in force and effect from and after the first day of September next following their final enactment unless a different date is specified in the law itself.
The definition from United States v. Wilson, 7 Pet. 150, 8 L.Ed. 640, is the one usually quoted: “Pardon * * * an act of grace, proceeding from the power intrusted with the execution of the laws, which exempts the individual, on whom it is bestowed, from the punishment the law inflicts for a crime he has committed.”
See also Bouvier’s Law Dictionary, Rawle’s Third Revision.
The appellant makes the concession on p. 7 of his brief that the “repealing act of June 24, 1939 * * * may be termed retrospective insofar as it affected persons who were still serving sentences * * * ” In our opinion this concession is unjustified by the facts and the law.
For typical rulings of the Pennsylvania Courts respecting possible retroactive effects of statutes see Speck v. Phillips, 160 Pa.Super. 365, 51 A.2d 399; Monroe Loan Soe. of Pennsylvania v. Morello, 160 Pa.Super. 418, 51 A.2d 347; Longacre Park Heating Co. v. Delaware County, 160 Pa.Super. 252, 50 A.2d 706; Empire Box Corp. of Stroudsburg v. Chesnut, 352 Pa. 418, 43 A.2d 88; Commonwealth v. Repplier Coal Co., 348 Pa. 372, 35 A.2d 319; and Commonwealth v. Greenawalt, 347 Pa. 510, 32 A.2d 757.
See Crosskey, “The True Meaning of the Constitutional Prohibition of Ex-Post-Facto Laws”, University Chicago L. R., Vol. 14, p. 539 et seq.