Bess v. Pearman

Decision Date12 October 1929
Docket Number(No. 12744.)
Citation150 S.E. 54
PartiesEx parte BESS. BESS . v. PEARMAN, Penitentiary Superintendent.
CourtSouth Carolina Supreme Court

.

Appeal from General Sessions Circuit Court of Richland County; W. H. Townsend, Judge.

Habeas corpus proceeding by Sallie Bess against Jas. N. Pearman, Superintendent of the Penitentiary, for an order discharging Ben Bess from the custody of the respondent. From the decree, Ben Bess appeals. Reversed, and the prisoner discharged.

The petition, the return, the master's report, the order of the lower court, and appellant's exceptions follow:

Petition for Writ of Habeas Corpus.

To Hon. W. H. Townsend, Judge of the Fifth Judicial Circuit:

The petition of Sallie Bess respectfully shows the court:

I. That she is a resident and citizen of South Carolina and the wife of Ben Bess, who is now imprisoned or restrained in his liberty by Hon. James N. Pearman, superintendent of the South Carolina penitentiary, being confined in the said penitentiary, Columbia, South Carolina.

II. That the said Ben Bess is not committed or detained by virtue of any process issued by any court of the United States, or any judge thereof, in any case where such courts or judges have exclusive jurisdiction by the commencement, of suits in such courts; nor by virtue of the final judgment or decree of any competent tribunal of civil or criminal jurisdiction, nor by virtue of any execution issued upon such judgment or decree.

III. And your petitioner avers that Ben Bess is utterly ignorant of the cause or pretense of such confinement or restraint, and believes it is without legal cause or warrant.

IV. And your petitioner further states that she is advised and verily believes that the imprisonment of Ben Bess is illegal, and that such illegality consists in his imprisonment without due process of law, and in the manner and method thereby prescribed.

V. And your petitioner further states that she is forced to make this petition for the reason that the said Ben Bess is held in said penitentiary without the privilege of seeing anyone, being even denied his legal right of consulting with counsel, although he has sought such counsel, and desires his liberty and freedom.

Wherefore, your petitioner prays that a writ of habeas corpus do issue to bring the said Ben Bess before your honor that the cause of his imprisonment or restraint of liberty be inquired into, and such further proceedings may be had thereon as are agreeable to law and justice.

Return to Writ of Habeas Corpus.

To the Honorable W. II. Townsend, Judge of the Fifth Judicial Circuit:

James N. Pearman, superintendent of the South Carolina penitentiary, by way of return to the writ of habeas corpus dated July 14, 1928, and by way of answer to the petition of Sallie Bess, respectfully shows to the court:

I. That he admits the allegations contained in the first paragraph of said petition, but denies each and every other material allegation in said petition.

II. That said Ben Bess was duly committed to the state penitentiary from Florence county under sentence of thirty years, a copy of said commitment being hereto attached as Exhibit A and made a part of this return, the said sentence not having expired and the same is now in full force and effect.

III. That on the 4th day of May, 1928, John G. Richards, Governor of South Carolina, granted to the said Ben Bess a suspension of sentence during good behavior, and on said suspension of sentence said Ben Bess was released from the state penitentiary; and on information and belief this respondent alleges that on the 12th day of May, 1928, the said Governor of South Carolina issued what purported to be a full pardon; and on June 21st, 1928, this respondent received a verbal order from the Governor to receive and confine Ben Bess in the state penitentiary for safe-keeping, the said verbal order being confirmed bywritten order dated July 16, 1928, a copy of which is hereto attached as a part of this return.

IV. That this respondent is informed and believes and on information and belief alleges that the said suspended sentence and the purported pardon were each and both obtained from the Governor by reason of misinformation and fraudulent statements presented to him, on which he relied, and that without such misinformation and fraudulent statements, the said Governor would not have signed either the suspension of sentence or the purported pardon, and that by reason of said misinformation and fraudulent statements, the said suspension of sentence and purported pardon were void from the beginning, never have taken effect, and are and have been invalid and ineffective in authorizing the release of the said Ben Bess from the state penitentiary; that since the signing of the said suspension of sentence and purported pardon, the Governor has withdrawn, canceled and annulled said papers on the grounds of fraud, a copy of said cancellation is hereto attached as a part of this return so that, the original sentence imposed by the court on Ben Bess on June 7, 1915, in Florence county is in full force and effect and the said Ben Bess is duly and legally held in the state penitentiary pursuant to and by virtue of a valid and effective judgment and sentence of the court of competent jurisdiction in the state of South Carolina.

Wherefore, this respondent prays that the writ be dismissed with cost.

Master's Report.

1. I, the undersigned master, have to report: Pursuant to an order of Hon. W. H. Townsend, Judge Fifth Circuit, dated July 19, 1928, referring the above entitled cause "to the master for Richland county to take and report the testimony with his findings thereon, and that the master for Richland county hold a reference with all convenient speed and take the testimony of any and all witnesses offered by the state or the petitioner to establish or refute the charge of fraud and misrepresentation and to report his finding of facts.thereon, " I held a reference herein on the 2d day of August, 1928, attended by the attorneys of record, took the testimony offered, which is herewith reported, and that thereafter, on the 8th day of August, 1928, I heard arguments of counsel on the facts presented by the testimony taken, and therefrom find as hereinafter set forth.

2. That one Ben Bess, after having been tried by a legally drawn jury and found guilty, that sentence, dated June 7, 1915, was passed by the presiding judge as follows: "It is hereby ordered and it is the sentence of the court that the said Ben Bess be imprisoned at hard labor in the state penitentiary for a period of thirty years hereafter."

3. That a petition for the pardon of Ben Bess, without date, together with affidavit thereto attached dated April 10, 1928, was hied in the office of the Governor of the state of South Carolina some time prior to the 4th day of May, 1928.

4. That by virtue of facts set forth in said petition, together with the affidavit which was offered in evidence and marked Exhibit D, the Governor did, on the 4th day of May, 1928, grant a suspension of sentence to the said Ben Bess during good behavior, and that thereafter, on the 12th day of.May, 1928, issued a full pardon to the said Ben Bess, which said pardon, under the hand and seal of the Governor, attested by the secretary of state, was offered in evidence as Exhibit A.

5. That after granting said pardon and Ben Bess was exercising his rights of freedom thereunder, the attention of the Attorney General and solicitor was directed to the propriety of having the affiant, who, under the affidavit upon which the pardon was granted, presented before the grand jury in the county of Florence, looking to the issuance of an indictment for perjury, and that upon such facts reaching the affiant through articles published in the papers, the affiant then denied that she had ever signed any paper with the intention of repudiating her previous testimony at the trial, and declared that she had signed a paper only "forgiving him, just only forgiving him."

6. That upon such denial and repudiating of said affidavit, the Governor caused Ben Bess, through his constables, to be placed in the state penitentiary for safe-keeping, declaring that "he was taken under by direction of his own free will and placed back in the penitentiary."

7. That on the 12th day of July, 1928, a petition for writ of habeas corpus was presented in the court of common pleas and upon hearing the same, the judge of the fifth judicial circuit directed a hearing before him at the court house on the 19th day of July, 1928.

8. That on the 17th day of July, 1928, the Governor issued his proclamation canceling the suspension of sentence, and also the pardon theretofore granted, stating his reason "that the same were issued on misinformation and obtained by fraud, " and thereupon indorsed on the record in the office of the secretary of state the following: "The within suspension of sentence is hereby withdrawn, canceled, and annulled and void for the reason that I am convinced that it was issued on misinformation and obtained by fraud, " and upon the pardon indorsed the following: "The within pardon is hereby withdrawn, canceled, annulled and void for the reason that I am convinced that it was issued on misinformation and obtained by fraud."

9. That return was made before Hon. W. H. Townsend by the Attorney General, and that, upon such return being made and heard, the presiding judge referred said cause to the master as hereinabove set forth by the order dated 19th day of July, 1928.

10. I find, as matter of fact, under the terms of the order referring said cause to the master, that no fraud whatsoever was perpetrated against the affiant in obtaining the affidavit, which, among other things, repudiated the testimony given by her at the original trial upon which conviction was had, and that said affidavit was, read over to the affiant before the same was signed, and that she, together with her son, had plenty of opportunity to acquaint themselves...

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4 cases
  • Adkins v. Com.
    • United States
    • Kentucky Court of Appeals
    • 20 Diciembre 1929
    ... ... pardon and to interpret and construe such instrument. In the ... very recent case of Ex parte Bess, 150 S.E. 54, the Supreme ... Court of South Carolina, upon a review of the authorities, ... declared that there can be no doubt of the power of a ... ...
  • Ex parte Bess
    • United States
    • South Carolina Supreme Court
    • 12 Octubre 1929
    ... 150 S.E. 54 152 S.C. 410 Ex parte BESS. BESS v. PEARMAN, Penitentiary Superintendent. No. 12744. Supreme Court of South Carolina October 12, 1929 ...          Appeal ... from General Sessions Circuit Court of Richland County; W. H ... Townsend, Judge ...          Habeas ... corpus proceeding by Sallie Bess against Jas. N ... ...
  • Adkins v. Commonwealth
    • United States
    • United States State Supreme Court — District of Kentucky
    • 20 Diciembre 1929
    ... ... In the very recent case of Ex parte Bess, 150 S.E. 54, the Supreme Court of South Carolina, upon a review of the authorities, declared that there can be no doubt of the power of a court of ... ...
  • Muckle v. Clarke
    • United States
    • Georgia Supreme Court
    • 16 Noviembre 1940
    ... ... See ... Const. art. 5,§ 1, par. 12; Code, § 2-2612; Dominick v ... Bowdoin, 44 Ga. 357; Grubb v. Bullock, 44 Ga ... 379; Ex parte Bess (Bess v. Pearman), 152 S.C. 410, ... 150 S.E. 54, 65 A.L.R. 1459; 20 R.C.L. 532, § 13. A pardon, ... however, is a mere act of grace, to which the ... ...

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