Blair v. Commonwealth

• Decision Date: 12 March 1874
• Citation: 66 Va. 850
• Parties: BLAIR v. THE COMMONWEALTH.
• Court: Virginia Supreme Court

66 Va. 850

BLAIR v. THE COMMONWEALTH.

Supreme Court of Appeals of Virginia.

March 12, 1874

Under the constitution of Virginia the governor has authority to pardon a person convicted of a felony by the verdict of the jury, before sentence is passed upon him by the court.

In January 1874 J. A. Blair was indicted in the Hustings court of the city of Richmond for larceny, in stealing United States treasury notes of the value of fifty-three dollars. On his trial the jury found him guilty, and fixed the term of his imprisonment at three years.

Although the taking the money by the prisoner was proved, yet his condition at the time was such as to relieve the act from much of its moral guilt, and the members of the jury, as well as the attorney for the commonwealth, united in recommending him to the governor as a proper object of executive clemency. The governor accordingly issued his pardon to the prisoner but affixed to it a condition that he should abstain wholly from the use of ardent spirits and intoxicating liquors of any kind, and to any extent, for the space of five years from the date of the pardon, except medicinally, and then only upon the prescription of a regular and reputable physician and in the manner and quantity prescribed.

The only question involved in the case is as to the power of the governor to grant a pardon in a case of felony after a verdict of conviction by the jury, and before sentence is pronounced upon the prisoner. The case is sufficiently stated in the opinion of Moncure P.

Stiles, for the prisoner.

The Attorney General stated that he had officially given his opinion to the governor when the application for a pardon was before him, that he had the power to pardon after the verdict and before the sentence, and he was still of that opinion.

OPINION

MONCURE P.

This is a writ of error to a judgment of the Hustings court of the city of Richmond, sentencing the plaintiff in error to confinement in the penitentiary for the term of three years for grand larceny, of which he had been found guilty by the verdict of a jury. The case is as follows:

On the 2d day of February 1874 the said plaintiff was indicted in the said court for grand larceny. On the fourth day of the same month he was found guilty of the said offence by the verdict of a jury, by which the term of his confinement in the penitentiary was ascertained to be three years. On the 10th day of the same month it being demanded of him if anything for himself he had or knew to say why the court should not now proceed to pronounce judgment against him according to law, he tendered to the court a special plea of pardon for the said offence, and produced in court, as a part of said plea, an instrument of writing, under the hand of the governor and the lesser seal of the commonwealth, purporting to be such a pardon. To the said plea the attorney for the commonwealth demurred, and the plaintiff in error joined in the demurrer. On the next day, to wit: the 11th day of February 1874, the court sustained the demurrer and rejected the said plea. The said plaintiff thereupon moved the court in arrest of judgment upon the verdict aforesaid, which motion the court overruled; and nothing further being offered or alleged in delay thereof, judgment was thereupon pronounced according to the verdict. To that judgment this writ of error was awarded.

The only question involved in this case is, " whether the governor had any authority to pardon the plaintiff in error for the said offence before judgment was rendered against him therefor?"

The governor's power to grant a pardon is conferred by the constitution, article iv, sec. 5, which declares that " he shall have power to remit fines and penalties in such cases, and under such rules and regulations as may be prescribed by law; and, except when the prosecution has been carried on by the house of delegates, to grant reprieves and pardons after conviction; to remove political disabilities consequent upon conviction for offenses committed prior or subsequent to the adoption of this constitution, and to commute capital punishment; but he shall communicate to the general assembly at each session the particulars of every case of fine or penalty remitted, of reprieve or pardon granted, and of punishment commuted, with his reasons for remitting, granting, or commuting the same."

Can the governor under this constitutional provision pardon a person for an offence after he has been found guilty thereof by the verdict of a jury, but before sentence is pronounced on such verdict? or, which is the same thing, do the words " after conviction" in the said provision refer to the verdict of the jury, or to the sentence in such a case? This is the question we now have to solve.

What is the meaning of the word " convicted," in this connection? Blackstone says: If the jury " find the prisoner guilty, he is then said to be convicted of the crime whereof he stands indicted; which conviction may accrue two ways--either by his confessing the offence and pleading guilty, or by his being found so by the verdict of his country." 4 Bl. Com. 362. And again he says: " The plea of antrefois convict, or a former conviction for the same identical crime, though no judgment was ever given, or perhaps will be (being suspended by the benefit of clergy or other causes), is a good plea in bar to an indictment." Id. 336. Jacob says: " There is great difference between a man convicted and attainted, though they are frequently, though inaccurately, confounded together:" and he then proceeds to explain the difference and its consequences. 1 Jacobs' Law Dictionary, p. 163, title " Attainder." And again he says: " Convict, convictus. He that is found guilty of an offence by verdict of a jury. Crompton saith, that conviction is either when a man is outlawed, or appeareth and confesseth, or is found guilty by the inquest; and when a statute excludes from clergy persons found guilty of felony, & c., it extends to those who are convicted by confession. Cromp. Just. 9." " Judgment amounts to conviction, though it doth not follow that every one who is convict is adjudged." 2 Id. p. 63, title " Convict and Conviction." Bouvier says: Conviction means " a condemnation. In its most extensive sense, this word signifies the giving judgment against a defendant, whether criminal or civil. In a more limited sense, it means the judgment given against a criminal. And in its most restricted sense, it is a record of the summary proceeding upon any penal statute, before one or more justices of the peace, or other person duly authorized, in a case where the offender has been convicted and sentenced; this last has usually been termed a summary conviction." 1 Bouv. Law Dictionary, p. 346, title " Conviction." Bishop says: " This word conviction ordinarily signifies the finding of the jury, by verdict, that the prisoner is guilty. When it is said there has been a conviction, or one is convict, the meaning usually is, not that sentence has been pronounced, but only that the verdict has been returned. Yet the word sometimes denotes the final judgment of the court. It has likewise some other significations, according to one of which, a conviction is defined to be a record of the summary proceedings upon any penal statute, before one or more justices of the peace, or other persons duly authorized, in a case where the offender has been convicted and sentenced." 1 Bishop on Crim. Law, § 361. And again he says: " There can be no pardon of an offence until committed; for earlier immunity granted, would be a license procurable only from the legislature. But when the guilt is incurred, it can be remitted either before judicial proceedings are undertaken, ordering their pendency, or after their termination, or after the punishment has been partly or fully endured. This is the general doctrine; but the constitution of most of our states forbid the pardoning power to act before conviction. We have already seen that a defendant is convicted when the verdict of guilty is returned by the jury, though the sentence is not pronounced, and accordingly, in Massachusetts, where this constitutional restraint prevails, the court, in one case, postponed the sentence after the verdict of guilty had been brought in, expressly to permit the defendant to apply for a pardon; which being obtained, was pleaded in bar of the sentence." Id. § 751. The case here referred to is Commonwealth v. Mash, 7 Metc. R. 472.

All or nearly all, of the authorities before referred to and others, were cited by the counsel for the plaintiff in error and the attorney general, in support of the view, in which they both concurred, that a verdict of guilty, without any sentence upon it, amounts to a conviction, within the meaning of the constitutional provision aforesaid. And the former also referred to many portions of our statute law, and some cases decided by our highest criminal court in support of the same view. As for example, Code of 1873, ch. 202, § 18: " If, after conviction, and before sentence of any person, the court see reasonable ground to doubt his sanity, it may impannel a jury," & c. § 20: " When a prisoner is so brought from the asylum," & c., " if convicted he shall be sentenced, " & c. §27: " If a person indicted of felony, be by the jury acquitted of part and convicted of part of the offence charged, he shall be sentenced for such part," & c. Id. ch. 195, § 23: " The term of confinement in the penitentiary or in jail of a person convicted of felony where that punishment is prescribed shall be ascertained by the jury." § 25: " When any person is convicted of an offence and sentenced to confinement therefor in the penitentiary," & c. § 27: " When a person is convicted of petit larceny, and it is...