Campion v. Gillan

• Citation: 112 N.W. 585,79 Neb. 364
• Decision Date: 22 June 1907
• Docket Number: 15,028
• Parties: WILLIAM M. CAMPION, RELATOR, v. JOHN A. GILLAN, RESPONDENT
• Court: Nebraska Supreme Court

112 N.W. 585

79 Neb. 364

WILLIAM M. CAMPION, RELATOR, v. JOHN A. GILLAN, RESPONDENT

No. 15,028

Supreme Court of Nebraska

June 22, 1907

ORIGINAL application for a writ of habeas corpus. Writ denied.

WRIT DENIED.

Burr & Marlay, for relator.

J. J Thomas, M. D. Carey and C. E. Holland, contra.

OPINION

SEDGWICK, C. J.

The relator, William M. Campion, was tried in the district court for Seward county upon a charge of bastardy preferred against him by one Nellie M. Lattimer. The jury returned a verdict of guilty, and thereupon on the 6th day of December, 1902, the court adjudged him to be the reputed father of the complainant's bastard child, and ordered that he stand charged with the maintenance of the child in the sum of $ 1,000, and adjudged the costs of the prosecution against him. It was adjudged that the said sum of $ 1,000 should be paid in instalments, $ 200 in the following January, and $ 100 on the first day of January each year thereafter, with interest at 7 per cent. on deferred payments after maturity; and it was further ordered that the defendant give security for payment in accordance with the decree, and that, in default of payment and of giving security, he "stand committed to the jail of Seward county according to law." The defendant failed to comply with the decree, and an order of commitment was duly issued committing him to the jail of Seward county in accordance with the decree. On the 24th day of October, 1906, the governor made an order in these words: "In the Matter of the Application for Pardon of William M. Campion, confined in the jail of Seward county, Nebraska: To John Gillan, Sheriff of Seward county, Nebraska, Seward, Nebraska. Sir: Upon receipt of this order you will release from confinement William M. Campion, now serving an indefinite sentence in your county jail, and this order is your authority for such release. (Seal.) (Signed.) John H. Mickey, Governor." This document having been delivered to the sheriff of Seward county, he thereupon discharged the relator from jail, and afterwards upon complaint being made to the district court of that county, an order was made directing the sheriff to retake the relator and again commit him to jail. Pursuant to this order the relator was again committed to jail. In November, 1906, the defendant having been charged in the district court for Seward county with the crime of abandoning his infant child under section 212a of the criminal code, he was placed upon trial in that court before a jury, and on the 29th day of that month the jury returned a verdict of guilty against him. Thereupon a motion for new trial was filed in the case, and, while the same was pending, the governor issued a pardon in the following words: "The State of Nebraska, ss.: Executive Office, Lincoln. In the name and by the authority of the state of Nebraska, John H. Mickey, governor of said state, in the matter of the application of William M. Campion, for a pardon, to all to whom these presents shall come, sends greeting: Whereas, in the month of December, A. D. 1902, in an action pending in the district court for Seward county, Nebraska, wherein one Nellie M. Lattimer was the complaining witness and said William M. Campion was defendant, said Campion was convicted in a trial to the jury of the crime and offense of bastardy, and whereas on October 24th, '06, in the manner provided by law on application for pardon, said William M. Campion was pardoned by the governor of this state for said offense and of said conviction, and the sheriff of said county duly released and discharged said Campion on account of and because of said pardon; whereas, on the 28th day of November, 1906, notwithstanding said pardon, by an order of the judge of said district court for Seward county, said William M. Campion was again arrested of said offense and again confined in the county jail of Seward county; whereas, on the 28th day of November, 1906, in an action pending in said district court for Seward county, Nebraska, wherein the state of Nebraska was plaintiff and said William M. Campion was defendant, he was convicted of the crime of abandonment and refusal and neglect to support without good cause the said child named in said proceedings as the reputed father of said illegitimate child and is now confined in the county jail of Seward county: Therefore, (1) know ye, that in consideration of the premises I hereby pardon the said William M. Campion, and he is hereby fully pardoned of each one of said offenses and convictions and orders of court, and the sheriff of Seward county is hereby ordered to release from confinement said William M. Campion. (2) All fines and forfeitures in connection therewith are hereby remitted. Given under my hand and the seal of the state of Nebraska this 22d day of December, A. D. 1906. (Seal.) John H. Mickey, Governor of the State of Nebraska. By the Governor: A. Galusha, Secretary of State." This document being presented to the sheriff of Seward county, he refused to recognize it, and thereupon this application was made to this court for a writ of habeas corpus.

1. It is contended in the brief that, after the relator had been discharged from confinement in the jail under the governor's order of October 24, above set forth, the district court had no jurisdiction in an ex parte proceeding to order the sheriff to recommit the relator to jail. Our constitution and laws do not authorize the governor to order the sheriffs of the respective counties to discharge prisoners in their custody, and the sheriff should have entirely disregarded this order. After having without authority discharged the relator from jail, it was the duty of the sheriff on his own motion to have retaken the relator under the original order of commitment, and no formal proceedings in the district court were necessary for that purpose. The legality of the detention of the relator by the sheriff depends, then, entirely upon the force and effect of the governor's pardon issued on the 22d day of December, 1906.

2. Did the governor's pardon authorize the release of the relator from imprisonment under the commitment in the bastardy proceedings? The source of the pardoning power reposed in the governor is to be found in section 13, art. V of the constitution, which is as follows: "The governor shall have the power to grant reprieves, commutations and pardons, after conviction, for all offenses except treason and cases of impeachment, upon such conditions and with such restrictions and limitations as he may think proper, subject to such regulations as may be provided by law, relative to the manner of applying for pardons. Upon conviction for treason, he shall have power to suspend the execution of the sentence until the case shall be reported to the legislature at its next session, when the legislature shall either pardon or commute the sentence, direct the execution of the sentence, or grant a further reprieve. He shall communicate to the legislature, at every regular session, each case of reprieve, commutation or pardon granted, stating the name of the convict, the crime of which he was convicted, the sentence and its date, and the date of the reprieve, commutation or pardon. " Was the relator convicted of an offense in these bastardy proceedings within the meaning of this constitutional provision? It is strenuously contended in his behalf that in determining this question great consideration must be given to the nature and character of the imprisonment. It is said that the law requires that he be imprisoned until he complies with the order of the court, and that cases will frequently arise in which, through financial inability to comply with the order of the court, the imprisonment must be perpetual; that such a remedy must be in the nature of punishment, and if he is imprisoned as a punishment it must be upon conviction of an offense, and so the conclusion is derived that these conditions rendered applicable the constitutional provisions clothing the governor with the pardoning power. It is not entirely clear to our minds that this premise is sound, or that, if it is, the conclusion must necessarily follow. Great reliance is placed upon the opinion of this court in Ex parte Donahoe, 24 Neb. 66, 38 N.W. 28, as establishing the law to be that there is no remedy for a defendant in bastardy proceedings upon conviction and being ordered to make payment to the complaining witness, except to comply with the order of the court, and that, in case of inability to comply with the order of the court, no alternative remains but to remain perpetually in jail. In the opinion in that case the language of the statute "there to remain until he shall comply with the requirements of the court" is printed with emphasis, and the opinion also contains this language: "This proceeding, under the statute, does not offer any...