Ex parte Jones

• Decision Date: 06 December 1923
• Docket Number: A-4927.
• Citation: 220 P. 978,25 Okla.Crim. 347,34 A.L.R. 206
• Parties: EX PARTE JONES.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

220 P. 978

25 Okla.Crim. 347, 34 A.L.R. 206

EX PARTE JONES.

No. A-4927.

Court of Criminal Appeals of Oklahoma

December 6, 1923

Syllabus by the Court.

A pardon is an act of grace and mercy bestowed by the state through its chief executive, upon offenders against its laws after conviction, and a full, unconditional pardon reaches both the punishment prescribed for the offense and the guilt of the offender; it obliterates in legal contemplation the offense itself, and hence its effect is to make the offender a new man.

Granting a pardon is an official act on the part of the Governor, and such an official act as the law requires to be evidenced by written instrument, to be subscribed by him.

Under Const. art. 6, § 18, requiring the Secretary of State, as custodian of the seal of the state, to "authenticate therewith, all official acts of the Governor, except his approval of laws," it is the duty of the Secretary of State to countersign and affix the great seal of the state to all pardons granted by the Governor, and it is essential to the validity of an instrument purporting to be a pardon that it should be authenticated under the great seal of the state as the official act of the Governor.

Under Const. art. 6, § 17, providing that the Secretary of State shall keep a register of the official acts of the Governor an instrument purporting to be a pardon, not authenticated by the great seal of the state, is not entitled to be registered by the Secretary of State as an official act of the Governor.

The instrument in question in this case, purporting to be a pardon, signed by J. C. Walton, then Governor, was not authenticated under the great seal of the state or registered in the office of the Secretary of State. Held, that to be a valid pardon it must be authenticated under the great seal of the state, and without such authentication such instrument is insufficient in law to authorize the discharge of petitioner from the imprisonment of which he complains.

Application of Xenophon Jones for writ of habeas corpus. Writ denied.

Moman Pruiett, of Oklahoma City, W. N. Redwine, of McAlester, and Victor A. Sniggs and O. C. Patterson, both of Oklahoma City for petitioner.

George F. Short, Atty. Gen., and John Barry, Asst. Atty. Gen., for respondent.

DOYLE J.

This is an application for discharge from imprisonment in the penitentiary on the part of Xenophon Jones.

It is averred in the petition that on the 7th day of July, 1921, he was convicted in the district court of Muskogee county of manslaughter in the first degree, and was sentenced to imprisonment in the state penitentiary for a term of 25 years; that he is now confined in said penitentiary by the warden, W. H. Townsend, under said judgment and commitment that on the 23d day of October, 1923, J. C. Walton, who was then Governor of the state of Oklahoma, by virtue of the power and authority vested in him, granted and issued to petitioner, Xenophon Jones, a full and complete pardon for said offense for which he is imprisoned, said pardon to take effect immediately, and is entitled to his discharge, but that, notwithstanding this fact, he is unlawfully and illegally restrained of his liberty by W. H. Townsend, the warden, in confinement in said penitentiary, who refuses to discharge him.

Attached to the petition, and made a part thereof, is a copy of an instrument purporting to be a pardon signed J. C. Walton, Governor of the state of Oklahoma, which instrument it appears is not authenticated by the great seal of the state or registered in the office of the Secretary of State or otherwise attested.

The Attorney General filed a demurrer to said petition on the ground that the same does not state facts sufficient to authorize respondent to release said petitioner or to entitle said petitioner to a discharge from the imprisonment of which he complains. The argument of the Attorney General is that the purported pardon attached to said petition shows upon its face that it has not been presented to and authenticated by the Secretary of State or registered as an official act of the Governor, as provided and required under article 6,§§ 17 and 18, of the Constitution, and that until the same is so authenticated it is not a valid pardon.

It will be observed, as preliminary to the consideration of the question presented, that a pardon is an act of grace and mercy bestowed by the state through its chief executive, upon offenders against its laws after conviction, and a full and unconditional pardon reaches both the punishment prescribed for the offense and the guilt of the offender; it obliterates in legal contemplation the offense itself; and hence its effect is to make the offender a new man. Ex parte Crump, 10 Okl. Cr. 133, 135 P. 428, 47 L. R. A. (N. S.) 1036.

In United States v. Wilson, 7 Pet. 150, 8 L.Ed. 640, Chief Justice Marshall said:

"The Constitution gives to the President, in general terms, 'the power to grant reprieves and pardons for offenses against the United States.' As this power had been exercised, from time immemorial, by the executive of that nation whose language is our language, and to whose judicial institutions ours bear a close resemblance, we adopt their principles respecting the operation and effect of a pardon, and look into their books for the rules prescribing the manner in which it is to be used by the person who would avail himself of it.

A pardon is an act of grace, proceeding from the power intrusted with the execution of the laws, which exempts the individual, on whom it is bestowed, from the punishment the law inflicts for a crime he has committed. It is the private, though official, act of the executive magistrate, delivered to the individual for whose benefit it is intended, and not communicated officially to the court. It is a constituent part of the judicial system, that the judge sees only with judicial eyes, and knows nothing respecting any particular case, of which he is not informed judicially. A private deed, not communicated to him, whatever may be its character, whether a pardon or release, is totally unknown, and cannot be acted on. The looseness which would be introduced into judicial proceedings would prove fatal to the great principles of justice, if the judge might notice and act upon facts not brought regularly into the cause. Such a proceeding, in ordinary cases, would subvert the best established principles, and overturn those rules which have been settled by the wisdom of ages.

Is there anything peculiar in a pardon which ought to distinguish it in this respect from other facts? We know of no legal principle which will sustain such a distinction. A pardon is a deed, to the validity of which delivery is essential, and delivery is not complete without acceptance."

In Knapp v. Thomas, 39 Ohio St. 377, 48 Am. Rep. 462, it is said:

"It is, in effect, a reversal of the judgment, a verdict of acquittal and a judgment of discharge thereon, to this extent, that there is a complete estoppel of record against further punishment pursuant to such conviction. Though sometimes called an act of grace and mercy, a pardon, where properly granted, is also an act of justice, supported by a wise public policy."

Wharton says:

"Pardon, in its technical legal sense, is a declaration on record by the sovereign that a particular individual is to be relieved from the legal consequences of a particular crime." 1 Whart. Crim. L. (7th Ed.) § 591a.

This definition is probably the most accurate and comprehensive, and best expresses the legal signification of the word.

The power to pardon is an executive power expressly vested by the Constitution of the state in the Governor. The language of the Constitution (article 6, § 10) is:

"The Governor shall have power to grant, after conviction, reprieves, commutations, paroles, and pardons for all offenses, except cases of impeachment, upon such conditions and with such restrictions and limitations as he may deem proper, subject to such regulations as may be prescribed by law. He shall communicate to the Legislature, at each regular session, each case of reprieve, commutation, parole, or pardon, granted, stating the name of the convict, the crime of which he was convicted, the date and place of conviction and the date of commutation, pardon, parole, or reprieve."

It is to be observed that, as the Constitution has vested the pardoning power in the Governor, and clothed him with exclusive authority to grant, after conviction, pardons for all offenses, except cases of impeachment, the only limitations which have been or can be made on the power are found in the Constitution itself. Ex parte Ridley, 3 Okl. Cr 350, 106 P. 549, 26 L. R. A. (N. S.) 110. The Constitution deals with the pardoning power not as a prerogative claimed by divine right, but as an adjunct to the administration of justice, recognized in all civilized governments as necessary by reason of the fallibility of human laws and human tribunals. Generally speaking, the granting of pardons is discretionary in its nature, and this discretion should be exercised upon public considerations...