Commonwealth v. Hall, County Judge

• Decision Date: 24 March 1939
• Citation: 277 Ky. 612
• Parties: Commonwealth ex rel. Meredith, Atty. Gen., v. Hall, County Judge.
• Court: United States State Supreme Court — District of Kentucky

277 Ky. 612

Commonwealth ex rel. Meredith, Atty. Gen., v. Hall, County Judge.

Court of Appeals of Kentucky.

March 24, 1939.

1. Pardon. — The granting of conditional pardons is governed in Kentucky by common-law rules in the absence of regulation or prohibition by statute.

2. Pardon. — Executive pardon may contain any condition precedent or condition subsequent that is not immoral, illegal or impossible of performance, for breach of which condition, accepted with the pardon, the pardoned prisoner may be rearrested and required to serve out the unexpired portion of his suspended but still potent sentence.

3. Pardon. — Right of summary revocation may be expressly reserved in a conditional pardon, otherwise, before the pardon can be effectually revoked, the pardon holder is entitled to a judicial determination as to violation of the conditions.

4. Constitutional Law; Pardon. — Conditional pardon accepted by prisoner providing that for failure to conduct himself as a useful, upright and law-abiding citizen he could "by executive order be re-arrested and re-confined," reserved to the Governor the power of revocation upon an ex parte finding, hence prisoner reconfined by that method was not unlawfully detained or denied due process.

5. Pardon. — Where conditional pardon reserved to the Governor the power to revoke by executive order for breach of condition, and Governor expressly found and recited in his order of revocation of pardon that the conditions had been violated, the basis of his findings was not subject to judicial examination.

6. Prohibition. — Where proper method of revocation of conditional pardon was followed by Governor who was authorized by the pardon to revoke in his discretion on ex parte findings, writ of prohibition would issue to restrain proceedings upon an application for a writ of habeas corpus by a prisoner reconfined as a result of such a revocation.

Application for Writ of Prohibition.

HUBERT MEREDITH, Attorney General, and JESSE K. LEWIS and WILLIAM NEILL, Assistant Attorneys General, for petitioner.

LESLIE W. MORRIS, MARION RIDER and J. BALLARD CLARK for respondent.

OPINION OF THE COURT BY JUDGE STITES.

Granting writ.

In April, 1934, Lee Fleenor was convicted of voluntary manslaughter, and in November of the same year began to serve his sentence. On December 4, 1935, Governor Laffoon granted Fleenor, together with a number of others, a conditional pardon which was accepted. On December 10, 1938, Acting Governor Edwin C. Dawson revoked the pardon as to Fleenor by an executive order and he was arrested and returned to the Reformatory. He was not given an opportunity to be heard nor any notice prior to the revocation of the pardon or his arrest. Fleenor filed a petition for a writ of habeas corpus before the respondent, James Hall, judge of the Oldham County Court, alleging that the conditional pardon granted him does not reserve to the Governor power to determine a violation of the conditions prescribed and that his present detention is therefore unlawful. He asserted that the order of revocation, without a judicial determination that he had violated the terms of the pardon, constitutes a denial to him of due process of law. The Commonwealth, on relation of the Attorney General, thereupon filed this petition for a writ of prohibition to stop the respondent from proceeding further upon the application for a writ of habeas corpus. A temporary writ of prohibition was granted and the case is now before us on the application of the Commonwealth to make the writ permanent and on the demurrer of the respondent to the petition. The conditions of the pardon were:

"First, that the said named persons, and each of them, will, until the expiration dates of the sentences which they are now serving, conduct themselves as useful, upright and law-abiding citizens of the Commonwealth of Kentucky; and provided that if any of them shall fail to so conduct themselves for said period, those so failing may, by executive order made and entered upon the Executive Journal, be re-arrested and re-confined in either of the two named penal institutions of the Commonwealth of Kentucky and be required to serve out the full unexpired terms of their respective sentences.

"Second, that if any person granted executive clemency herein by this executive order shall, before the date on which his sentence would have expired, be convicted of a felony in any of the courts of this Commonwealth, the pardon hereby granted said person shall be null and void and of no effect, and said person shall be subject to arrest and shall be required to serve the unexpired portion of the sentence for which he is now incarcerated.

"Third, that if the persons hereinabove named conduct themselves as law-abiding citizens and violate none of the conditions of this executive order and of this conditional pardon, then they, and each of them, shall on the dates shown herein as the dates when their respective terms would have expired had they remained in prison be granted a full and free pardon and restored to full citizenship, and all the rights and privileges thereof; and they and each of them shall be privileged thereafter to exercise and enjoy citizenship as other citizens, provided, of course, they do not violate any of the conditions of this conditional pardon, and that they do not violate any of the conditions upon which this conditional pardon is granted."

There is no statutory provision regulating or prohibiting the granting of conditional pardons in Kentucky and we are left, therefore, simply with the rules of the common law in this connection. It seems to be held universally that the power given to the executive to grant a pardon includes the right to annex any conditions, whether precedent or subsequent, so long as they are not illegal, immoral, or impossible of performance. Ex parte Davenport, 110 Tex. Cr. R. 326, 7 S.W. (2d) 589, 60 A.L.R. 1403, and note.

"Where a pardon is granted upon any condition subsequent...