Dominick v. Bowdoin

CourtSupreme Court of Georgia
Writing for the CourtLOCHRANE, Chief Justice
Citation44 Ga. 357
Decision Date31 July 1871
PartiesJOHN A. DOMINICK, plaintiff in error v. B. C. BOWDOIN,jailor, defendant in error.

44 Ga. 357

JOHN A. DOMINICK, plaintiff in error v. B. C. BOWDOIN, jailor, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, July Term, 1871.)


upon its merits, as to the facts in the particular case, and it was error in the Court to hold that this question could only be enquired of by the jury.

Habeas Corpus. Pardons. Before Judge Green. Chambers Spalding county, March, 1871.

Dominick was indicted in 1869, for murdering one Pilkinton, in said county, in 1868. A bench-warrant was placed in the sheriff's hands; he arrested Dominick on the 19th of February, 1871, and had him duly committed to jail. Dominick had habeas corpus issued to release him from imprisonment. The sheriff relied upon his arrest and detention on said bench warrant. Dominick replied, by producing and offering as evidence, a pardon by the Governor of

[44 Ga. 358]

this State, (R. B. Bullock,) dated the 20th of October, 1870. It recited, as reasons for the pardon, that said *indictment was pending against Dominick, that he, the Governor, had a petition, numerously signed by citizens of Pike county, asking a discontinuance of said case, and Dominick\'s pardon, because he killed Pilkinton under the great provocation of Pilkinton\'s brutally and violently beating Dominick\'s mother; that Dominick was a man of good character, and his family absolutely needed his assistance; that the case, though so old, had never undergone judicial investigation, and "Hon. Thomas J. Speer, Senator of the Twenty-second Senatorial District, embracing Pike county, united in said petition." It "pardoned Dominick of the crime alleged against him in said bill of indictment, and every other charge of like nature, arising out of the same facts, or based upon the same transaction." It was duly authenticated. Counsel for the sheriff objected to this pardon being used as evidence, saying that it was procured by fraud, and that that issue of fact should be submitted to a jury, and could not be decided by the Judge. This objection was sustained; the pardon was ruled out, and the Judge remanded Dominick to jail. This is assigned as error.

D. J. Bailey; Hugh Buchanon, for plaintiff in error. As to pardoning power: Constitution of 1868, Art. 4, p. 5158; Art. 3, p. 4950. Pardon may antedate conviction: Cons. U. S., Art. 2, sec. 2, p. 5032, and Constitution of 1868, cited ante: 4 Wall. R., 334. Pardon binds Courts: 7 Peters, U. S. S. C. R., 150; 2 Bl. Com., 402; Ch. 1 Cr. L., 772; 4 Bl. Com., 401. It needs but to be produced: 3 Bouv. Ins., 447.

L. B. Anderson, Solicitor General; Doyal & Nunnally; Peeples & Stewart, for defendant. Habeas corpus cannot discharge from bench warrant: R. Code, sec. 3947. Fraud in procuring it makes pardon void: 1 Bish. Cr. L. 754, 755; 8 Wright's Penn. R., 210,

[44 Ga. 359]

219; 7 Bacon\'s Abr., 410. Conditional pardons: 2 Story on Con., sec. 1504 and *note; 18 How., 307; 1 Kent\'s Com., 306; 7 Peters, 150; 1 Bailey\'s R., 283; 8 Watts & S., 197; 1 Bish. Cr. L., sec. 711.

LOCHRANE, Chief Justice.

At the April Term, 1869, of the Superior Court of the county of Pike, John A. Dominick, the plaintiff in error, was

[44 Ga. 360]

indicted for murder. In October, 1870, the Governor of this State granted and caused to be delivered to him an unconditional pardon. Subsequently to this pardon he was arrested by the sheriff upon a bench-warrant issued from Pike Superior Court, upon the indictment for murder, and taken before some judicial officers in Pike county, who ordered him to be lodged in the common jail of the county of Spalding for safe keeping.

During his confinement in jail he applied for the State's writ of habeas corpus, which was granted, and, upon the hearing, the jailer assigned for cause of his detention and imprisonment the proceedings stated, and that he presented the pardon of the Governor after he was in jail, etc.

The Judge, sitting as a Court of habeas corpus, refused to receive the evidence of the pardon, and remitted the prisoner to jail, and this judgment of the Court below is the error assigned.

1. The important question to be decided in this case is the power of the Governor, under the Constitution of 1868, to grant pardons before conviction. The language of the Constitution of 1868 is in these words: "He shall have power to grant reprieves and pardons, to commute penalties, and to remit any part of a sentence for offenses against the State except in cases of impeachment."

The power conferred under this Constitution differs from that conferred by our previous Constitutions. In the Constitution of 1798, the language was: "He shall have power to grant reprieves for offenses against the State, except in cases of impeachment, and to grant pardons, or to remit any *part of a sentence in all cases, after conviction, except for treason or murder, in which cases he may respite the execution, and make report thereof to the next General Assembly, by whom a pardon may be granted."

From the 23d May, 1798, down to the Constitution of 1868, the power of the Governor was limited by the Constitution as to the nature of the offences to be pardoned, and also to the time, or "after conviction." By reference to our present Constitution, it will be seen these checks and limitations have been removed. His power to pardon is limited only in cases of impeachment, and the Constitution is silent as to the time when the power may be exercised.

The language of our present Constitution is similar to that used in the Constitution of the United States. Enumerating the president's powers, it says: "He shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment." It will be seen that the Constitution of the United States is also silent as to the time when the power may be exercised by the president. The power of pardoning may be traced among the earliest writers, as the prerogative of the sovereign authority, and no matter what reasons it may be founded upon, its existence has

[44 Ga. 361]

been recognized. The limitations in cases of impeachment, found in the United States Constitution, and the Constitution of 1868, may be found in Stat. 12 and 13, W. III., C, 2, which contains these words: "That no pardon under the great seal should be pleaded in bar to an impeachment by the house of Commons." And this was, itself, founded upon the altercations which finally terminated in the dissolution of Parliament, arising out of the impeachment of the Earl of Danby, in 1678, before the Commons, and who presented as his plea in bar of such impeachment, the pardon of the King. The prerogatives of the Crown, and the legislative privileges of the Parliament of Great Britain, were practically settled by the revolution of 1688, but the subject has again and again been subjected to grave and learned discussions, *and the rights and privileges of Parliament may be, perhaps, now conceded to be beyond the control of judicial tribunals. And the last speech of the celebrated Sir William Wyndham, was delivered in the House of Commons upon this very subject. But whatever claims of limitation against the power of pardon, in cases of impeachment, may have existed, the right as to offenses against the Crown, was yielded, as the unquestioned prerogative of the sovereign. And from the nation whence we have derived the great body of our laws, and fundamental principles of free government, we have also acquired the judicial exposition of the laws themselves, as precedents, worthy, in my judgment, to be accepted as the very soundest promulgation of what the law originally intended to announce. For myself, I entertain the very highest estimate of the learning and purity of the Judges who adorn the Bench of Great Britain, and upon a subject when, under the same laws copied from British statutes into our legislative system, I find the construction of their Courts, I yield to them a deference and consideration based upon my appreciation of their intrinsic value.

In the case at bar, the English Courts have held, in the language of Lord Coke: "A pardon is a work of...

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6 practice notes
  • Davis v. State, A16A1650
    • United States
    • United States Court of Appeals (Georgia)
    • March 10, 2017
    ...State v. Land-O-Sun Dairies, Inc., 204 Ga.App. 485, 486, 419 S.E.2d 743 (1992) (punctuation omitted); see Dominick v. Bowdoin, 44 Ga. 357, 363, 1871 WL 2695 (1871) (noting that arguing that a pardon prevents prosecution should be treated as a plea in bar).12 See Harlacher, 336 Ga.App. at 10......
  • Ex parte Paquette, No. 1710.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • July 15, 1942
    ...5 Ind. 359, 362. This is so even though the fraud was not induced by the convict himself, but was practiced by others. Dominick v. Bowdoin, 44 Ga. 357, 365; Commonwealth v. Halloway, supra; 1 Bishop, New Criminal Law, 8 Ed., p. 549, para. 906(1). The question may be raised upon a petition f......
  • Rathbun v. Baumel, No. 34377.
    • United States
    • United States State Supreme Court of Iowa
    • December 15, 1922
    ...the extent in which it would be admissible to vacate a judgment. And an erroneous recital is no proof of fraud.” In Dominick v. Bowdoin, 44 Ga. 357, the action was in habeas corpus. The defendant, as sheriff, relied upon a bench warrant to retain the petitioner. The latter replied by produc......
  • Bess v. Pearman, (No. 12744.)
    • United States
    • United States State Supreme Court of South Carolina
    • October 12, 1929
    ...his pardon, and this, although the prisoner did not himself know of or participate in the fraud. * * * And in Dominick v. Bowdoin (1871) 44 Ga. 357, * * * the court approved the rule that pardons obtained by fraud are void, and held that, upon suggestion of fraud upon the trial of habeas co......
  • Request a trial to view additional results
6 cases
  • Davis v. State, A16A1650
    • United States
    • United States Court of Appeals (Georgia)
    • March 10, 2017
    ...State v. Land-O-Sun Dairies, Inc., 204 Ga.App. 485, 486, 419 S.E.2d 743 (1992) (punctuation omitted); see Dominick v. Bowdoin, 44 Ga. 357, 363, 1871 WL 2695 (1871) (noting that arguing that a pardon prevents prosecution should be treated as a plea in bar).12 See Harlacher, 336 Ga.App. at 10......
  • Ex parte Paquette, No. 1710.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • July 15, 1942
    ...5 Ind. 359, 362. This is so even though the fraud was not induced by the convict himself, but was practiced by others. Dominick v. Bowdoin, 44 Ga. 357, 365; Commonwealth v. Halloway, supra; 1 Bishop, New Criminal Law, 8 Ed., p. 549, para. 906(1). The question may be raised upon a petition f......
  • Rathbun v. Baumel, No. 34377.
    • United States
    • United States State Supreme Court of Iowa
    • December 15, 1922
    ...the extent in which it would be admissible to vacate a judgment. And an erroneous recital is no proof of fraud.” In Dominick v. Bowdoin, 44 Ga. 357, the action was in habeas corpus. The defendant, as sheriff, relied upon a bench warrant to retain the petitioner. The latter replied by produc......
  • Bess v. Pearman, (No. 12744.)
    • United States
    • United States State Supreme Court of South Carolina
    • October 12, 1929
    ...his pardon, and this, although the prisoner did not himself know of or participate in the fraud. * * * And in Dominick v. Bowdoin (1871) 44 Ga. 357, * * * the court approved the rule that pardons obtained by fraud are void, and held that, upon suggestion of fraud upon the trial of habeas co......
  • Request a trial to view additional results

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