Baker v. State

• Decision Date: 11 June 1913
• Citation: 158 S.W. 998
• Parties: BAKER v. STATE.
• Court: Texas Court of Criminal Appeals

158 S.W. 998

BAKER v. STATE.

Court of Criminal Appeals of Texas.

June 11, 1913.

Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.

John Baker was convicted of burglary and he appeals. Reversed and remanded.

W. W. Wander, of Houston, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

Appellant was indicted, charged with burglary. The offense is alleged to have occurred on the 9th of last February, but he was not tried until the 14th day of March. What is known as the "Suspended Sentence" law had been passed when appellant was tried, and, it carrying the emergency clause, had gone into effect. Appellant before the trial began filed a written request, in substance, as follows: "Now comes the defendant in the above styled and numbered cause, and being then and there charged by indictment with the offense of burglary other than a private residence at night, and shows to the court, that he has never been convicted of a felony in this state or in other state, and prays that the court instruct the jury in this case that if they find him guilty as charged in the indictment and the punishment does not exceed five years, that the said jury suspend his sentence during good behavior during the time, if any, the jury shall assess."

In accordance with the request the court instructed the jury: "You are instructed that under the law of this state, where the proof shows the defendant is charged with burglary and that he has never been convicted of a felony in this state or in any other state, the jury has the power to delay the sentence in the case by recommending to the court in their verdict to delay sentence provided the verdict of the jury is confinement in the penitentiary for a period of not more than five years, therefore, if you find the defendant guilty of burglary as charged in the indictment and the punishment assessed by you is not more than five years, and if you further find that the defendant has never been convicted of a felony in this state or in any other state, then it is in your power to have the sentence suspended by recommending to the court that the sentence be so suspended. If you desire the sentence suspended let your verdict show that you find from the evidence that the defendant has never before been convicted of a felony in this state or in any other state and let your verdict further recommend the suspension of the sentence."

The jury promptly returned the following verdict: "We, the jury, find John Baker guilty and assess his punishment at two years' confinement in the state penitentiary, and further find from the evidence that he has never before been convicted of a felony in this state or in any other state, and recommend suspension of sentence."

The court, after submitting the issue, upon reflection, held the act unconstitutional, and sentenced appellant to the penitentiary, regardless of the finding of the jury, to which action of the court appellant reserved a bill of exceptions, and brings the question to us on appeal. In approving the bill the trial judge states his reasons in a forceful and able manner. He says:

"This bill of exceptions is approved with the following explanation: The court is of the opinion that the act passed by the Thirty-Third Legislature, known as the `Suspended Sentence Law,' being Senate Bill No. 5, is unconstitutional, and that it is subject to the same objections and in conflict with the same provisions of the Constitution as was the suspended sentence law passed by the Thirty-Second Legislature.

"With this belief, I have fixed the recognizance of the defendant on appeal in the nominal sum of $10, which he has given, so that my ruling might work no hardship, and that the question might be fairly and squarely presented to the appellate court for decision.

"My opinion is that the effect of this act is, if valid, to force the district judges to grant a conditional pardon during the time of the duration of the term of years fixed by the verdict of the jury when they recommend the suspension of the sentence, and to force the district judges to grant an absolute pardon after the term of years so fixed has expired upon the defendant showing that he is not under indictment for another felony, and that he has not been convicted of any other felony.

"The pardoning power belongs to the Governor, and no court in Texas can exercise it by indefinitely suspending the sentence of a convicted criminal, the suspension being subject to revocation only upon his being, during the suspension, finally convicted of another felony.

"This act also provides that after the expiration of the time assessed as punishment by the jury, the defendant may make an application for a new trial and dismissal of the case, and upon allegation and proof that since his former trial and conviction he has not been convicted of any other felony, and there is not then pending against him any other felony charge, the court shall then grant a new trial and dismiss the case, and thus grant an absolute pardon, releasing the punishment and wiping out of existence the suilt.

"The verdict of the jury recommending the suspension of sentence under the former act had the effect only of conferring upon the court the power to consider whether he would suspend the sentence, while the present act required the court to suspend sentence in all cases when recommended by the jury in their verdict; the court having no discretion in the matter, but being bound by the verdict of the jury. The effect, therefore, of the present act is to confer arbitrarily upon the jury in the first instance the power to suspend the sentence by requiring the court to follow their recommendation in all cases, and second, to force the court, when the allegations and proof stated is made, to grant in effect an absolute pardon. The exercise of clemency is required of the court, and not invited, when the motion to set aside the verdict and for dismissal is made upon the grounds heretofore mentioned.

"The whole effect of the act is to undertake to confer upon the jury in the first instance and upon the court in the second the power to suspend the sentence of a convicted criminal, not to preserve the legal rights of the defendant, or because of the pendency of a motion for new trial, but merely for clemency.

"This act, like the former act, is contrary to article 4, § 11, of the Constitution of this state, which provides that in all criminal cases except treason and impeachment the Governor shall have power after conviction to grant pardons. The court is of the opinion that under this provision of the Constitution the Governor has the power, if he sees fit to exercise it, to grant a pardon, after conviction by the jury and judgment on the verdict, before sentence or while the case is pending on appeal.

"This pardon may be either absolute or conditional, and except as to cases of treason and impeachment is not limited in criminal cases except that, as stated in Camron v. State, 32 Tex. Cr. R. 182 [22 S. W. 682, 40 Am. St. Rep. 763], `the pardoning power can only be invoked after conviction.' In the case of Snodgrass v. State, 150 S. W. 172, 41 L. R. A. (N. S.) 1144, the Court of Criminal Appeals, to my mind, conclusively demonstrates that the words `after conviction' do not embrace the sentence, but simply mean the verdict of conviction and the judgment on the verdict, the opinion clearly showing that from our first Code a pardon was a legal reason to be interposed in bar of sentence, and that subsequent Constitutions and Codes had been adopted and revised with the same provisions, thereby adopting its construction.

"In Blair v. Commonwealth, 66 Va. 850, it was held that the Governor had authority to pardon a person convicted of a felony by the verdict of a jury before sentence was passed upon him by the court. In Cole v. State 106 S. W. 673, a pardon was held valid which was granted while the appeal of the defendant was pending in the Supreme Court of Arkansas, the Constitution of that state giving the Governor power to pardon `after conviction.' In Parker v. State , 53 S. W. 1092, the defendant introduced a pardon in bar of sentence and the Supreme Court of Tennessee held that he was entitled to then plead it. In Ex parte Collins 6 S. W. 345, the Supreme Court of Missouri held that the words `after conviction' as contained in the Constitution giving the Governor the power to pardon after conviction mean after the return of a verdict of guilty. In Spafford v. Benzie Circuit Judge, 136 Mich. 25, 98 N. W. 741, the defendant before sentence received a pardon from the Governor which recited that he had been convicted and sentenced, whereas he had not been sentenced. The court held that the Governor had power to pardon before sentence. The Michigan Constitution limits the pardoning power so that a pardon can only be legally issued after conviction. In People v. Marsh et al., 125 Mich. 410, 84 N. W. 472 [51 L. R. A. 461, 84 Am. St. Rep. 584], the pardon was issued after verdict and before sentence and it was contended that under the Constitution of Michigan which gave the Governor power to pardon after conviction that he had not authority to grant a conditional pardon prior to the sentence where the conditions were to be performed subsequent to the taking effect of the pardon. The court, citing Com. v. Lockwood, 109 Mass. 323, 12 Am. Rep. 699, held that there had been a conviction within the meaning of the Constitution so that executive clemency might be invoked, and held the pardon valid. In Com. v. Lockwood, supra, the court said that the ordinary meaning of the word `conviction,' when used to designate a particular stage of a criminal prosecution triable by a jury, is the confession of the accused in open court or the verdict returned against him by the jury which ascertains and publishes the fact of his guilt, while `judgment' or `sentence' is the appropriate word to denote the action of ...