Dover v. Bickle

• Decision Date: 12 July 1926
• Docket Number: (No. 116.)
• Citation: 285 S.W. 386
• Parties: DOVER v. BICKLE, Sheriff. NELSON et al. v. HALL.
• Court: Arkansas Supreme Court

285 S.W. 386

DOVER v. BICKLE, Sheriff.

NELSON et al. v. HALL.

(No. 116.)

Supreme Court of Arkansas.

July 12, 1926.

In Dover v. Bickle:

Appeal from Polk Chancery Court; C. E. Johnson, Chancellor.

In Nelson v. Hall:

Appeal from Union Chancery Court; Geo. M. LeCroy, Chancellor.

Separate actions by M. J. Dover against G. F. Bickle, Sheriff, for habeas corpus and to reform purported pardon, and by W. H. Hall against Perry Nelson and others, to enjoin arrest of plaintiff and to reform a purported pardon. From a decree dismissing the complaint of plaintiff M. J. Dover, he appeals; and from a decree in favor of plaintiff W. H. Hall, for injunction and reformation, defendants Perry Nelson and others appeal. Decree dismissing complaint of M. J. Dover affirmed, and decree in favor of plaintiff W. H. Hall, for injunction and for reformation, reversed, and his complaint dismissed.

Norwood & Alley, of Mena, for appellant Dover.

Gaughan & Sifford, of Camden, for appellants Nelson and others.

H. W. Applegate, Atty. Gen., and Brooks Hays, Asst. Atty. Gen., for appellees.

McCULLOCH, C. J.

M. J. Dover was convicted of felony in the circuit court of Polk county, and the judgment of conviction was affirmed on appeal to this court, 165 Ark. 496, 265 S. W. 76. Before he began serving his term in the penitentiary under the affirmed judgment of conviction, the Governor issued a suspension, or reprieve, for a period of three months. Two other such suspensions were issued by the Governor, which extended beyond October 29, 1925, and on that day S. B. McCall, President of the Senate, who was acting as Governor in the absence of the chief executive, issued a full and free pardon to Dover. On the return of the Governor to the state, he ordered a rearrest of Dover, which was accomplished by the sheriff of Polk county and Dover instituted an action in the chancery court of that county against the sheriff, praying for a writ of habeas corpus, to the end that he might be released from custody, and the prayer of the complaint was that the instrument of writing, purporting to be a full and free pardon issued to him, be amended, so as to incorporate a recital that the pardon "was granted by the Governor without application therefor being made to him by any attorney or paid representative of the person pardoned." On the hearing of the cause the chancery court dismissed the complaint for want of equity, and an appeal has been duly prosecuted to this court.

W. H. Hall was convicted of felony in the Pulaski circuit court, and on appeal to this court the judgment of conviction was affirmed. 161 Ark. 453, 257 S. W. 61. He began serving his term in the penitentiary under the affirmed judgment, and continued to do so until October 28, 1925, when the President of the Senate, as acting Governor, issued to him a full and free pardon. The Governor, on his return to the state, ordered the rearrest of Hall, which was done, and the latter instituted an action in the chancery court of Union county to reform the pardon issued to him by the insertion of the words quoted above, as in the Dover Case; and there was also a prayer in the complaint that the sheriff of Union county, and other officers of the state, be enjoined from arresting Hall for the enforcement of the original judgment of conviction. On the hearing of the cause the court granted all of the relief prayed for in Hall's complaint, and an appeal has been duly prosecuted to this court. The two cases stand in the same attitude, and may therefore be disposed of in one opinion.

In the pardons granted to each of the parties the recital quoted above was omitted, and in each case the prayer of the complaint was that the instrument be reformed so as to incorporate the same; the allegations in each complaint being that this recital was omitted by mistake. In each case it was proved and conceded that there was no publication of notice of the application for pardon, as required by section 2, p. 270, Acts 1903; Crawford & Moses' Digest, § 3371. In each case it was proved that the acting Governor issued the pardon without solicitation or application made by an attorney or paid representative of the pardonee. In Hall's case he introduced as a witness Mr. McCall, President of the Senate, who testified that in issuing the pardon he followed the printed form which had always been used by former Governors, that he was not aware of the legal necessity for inserting the recital quoted above, but would have incorporated the same, if his attention had been called to such necessity. In Dover's case he asked for a continuance in order to procure the attendance of Mr. McCall as a witness to prove the same facts which had been proved by that witness in the Hall case. If the testimony of McCall was material, the pardonee was entitled to procure his attendance as a witness. Therefore the two cases, as we have already said, stand before us in the same attitude and with similar questions presented to us for determination.

Section 4 of the act of 1903, supra (Crawford & Moses' Digest, § 3373), provides:

That the "Governor acting upon his own motion, or being prompted thereto by the result of investigations made at his instance, shall have the right to grant a pardon in any case without the publication provided for herein; but all such pardons so granted by the Governor shall state on the face of the certificate thereof that the same was granted by the Governor without application therefor being made to him by an attorney or paid representative of the person pardoned."

It was decided by this court in the recent case of Horton v. Gillespie, 279 S. W. 1020, that all of the provisions of the act of 1903, supra, are mandatory,...