Ex parte Paquette

• Decision Date: 15 July 1942
• Docket Number: No. 1710.,1710.
• Parties: Ex parte PAQUETTE.
• Court: Vermont Supreme Court

27 A.2d 129

Ex parte PAQUETTE.

No. 1710.

Supreme Court of Vermont, Washington.

July 15, 1942.

[Copyrighted material omitted.]

Original proceeding by George Adrien Paquette for a writ of habeas corpus to the Warden of the State Prison.

Judgment discharging petitioner from respondent's custody.

Before MOULTON, C. J., and SHERBURNE, BUTTLES, STURTEVANT, and JEFFORDS, JJ.

J. H. Macomber, Jr., of Burlington, for petitioner.

Alban J. Parker, Atty. Gen., for petitionee.

MOULTON, Chief Justice.

This is a writ of habeas corpus, directed to the Warden of the State Prison, by which the petitioner seeks to test the legality of his confinement in that institution. The facts are not in dispute.

On December 7, 1938, having been convicted of grand larceny, the petitioner was committed to the State Prison for a term of six to ten years. Some time thereafter it was represented to the Governor of this State that the petitioner was an alien and subject to deportation. The petitioner also believed this to be so and in writing stated that he was willing to waive his right to a decision upon the issue and asked to be deported, if released from prison. Solely in contemplation that deportation from the United States would follow, the Governor granted the petitioner a conditional pardon, dated July 25, 1941, which, in addition to the usual conditions as to good behavior and report to the probation officer, provided that: "This conditional pardon shall be effective Aug. 8, 1941, upon deportation warrant being served and federal officer taking custody." The pardon was accepted by the petitioner in writing, as required.

Deportation proceedings were instituted under the laws of the United States, and on August 8, 1941, a warrant was served upon the petitioner and he was taken into custody by a federal officer, being thereupon released from the State Prison. He remained in federal custody until December 4, 1941 when the deportation proceedings were cancelled or dismissed, and he was forthwith arrested and returned to the State Prison on an executive warrant signed by the Governor in which it was charged that he had "violated the conditions of his pardon in this: Relinquishment of Federal custody and cancellation of deportation proceedings."

By P.L. 8888 it is provided that: "The governor, in his discretion, may grant a pardon for offenses against the state upon such conditions as he judges proper. Until a person to whom such conditional pardon is granted is excused from the performance of the conditions thereof, the governor shall have all the authority, rights and powers over and in relation to such person which he would have if he were surety in the case upon the recognizance of such person before conviction, and he shall be the sole and exclusive judge as to whether the conditions of such pardon have been violated. If, in the judgment of the governor, such conditions have been violated, he may cause such person to be apprehended and returned to his former condition of custody that execution of sentence may be complied with." The pardon contains the stipulation that: "Upon consideration of the Governor * * * that you have violated and failed to perform the foregoing conditions this pardon shall become void, and you shall be apprehended and forthwith returned to your former condition of custody * * * upon a warrant issued for that purpose by the Governor. * * *"

By his acceptance of the pardon, the petitioner voluntarily submitted himself to the conditions stated in it and was bound by them. In re Conditional Discharge of Convicts, 73 Vt. 414, 423, 51 A. 10, 56 L.R.A. 658; In re Gordon, 105 Vt. 277, 279, 165 A. 905. He was also bound By the provisions of the statute under which the executive clemency was extended to him. Fuller v. State, 122 Ala. 32, 26 So. 146, 45 L.R.A. 502, 504, 82 Am.St.Rep. 1. The terms of pardon and the statute in pursuance of which it was granted gave the petitioner no right to notice and hearing as a condition precedent to his arrest and recommitment. Muckle v. Clarke, 191 Ga. 202, 13 S.E.2d 339, 341; Fuller v. State, 122 Ala. 32, 26 So. 146, 45 L.R.A. 502, 503, 504, 82 Am.St.Rep. 1; Owen v. Smith, 89 Neb. 596, 131 N.W. 914; Woodward v. Murdock, 124 Ind. 439, 24 N.E. 1047, 1048; State ex rel. Davis v. Hunter, 124 Iowa 569, 100 N.W. 510, 104 Am.St.Rep. 361, 364; Arthur v. Craig, 48 Iowa 264, 30 Am.Rep. 395, 398; In re Kennedy, 135 Mass. 48, 53, 54; and see State ex rel. O'Connor v. Wolfer, 53 Minn. 135, 54 N.W. 1065, 19 L.R.A. 783, 787, 39 Am.St.Rep. 582. In this there was no violation of his constitutional rights. In re Ridley, 3 Okl.Cr. 350, 106 P. 549, 26 L.R.A., N.S., 110, 116; Fuller v. State, 122 Ala. 32, 26 So. 146, 45 L.R.A. 502, 503, 82 Am.St.Rep. 1; Fleenor v. Hammond, 6 Cir., 116 F.2d 982, 132 A.L.R. 1241, and People v. Moore, 62 Mich. 496, 29 N.W. 80, holding the contrary, are opposed to the great weight of authority, and we do not follow them. See cas. cit. Annotations, 132 A.L.R. 1257; 54 A.L.R. 1483.

Although the Governor is constituted the sole and exclusive judge as to whether the conditions of the pardon have been violated, he may not, in the absence of statutory authority, designate something as a breach of condition where no such condition is expressed in the pardon or recommit the pardoned convict where it concededly appears that the conditions have been complied with. In the absence of statute a conditional pardon once delivered and accepted can be revoked only upon violation of its stated conditions. Ex parte Rice, 72 Tex.Cr.R. 587, 162 S.W. 891, 900, 901; Ex parte Williams, 149 N.C. 436, 63 S.E. 108, 22 L.R.A., N.S., 238, 240; and annotation 22 L.R.A., N.S., 239.

The provision that the pardon should be effective August 8, 1941, upon deportation warrant being served and federal officer taking custody of the petitioner, was a condition precedent to its validity. It is not questioned that this condition was fully complied with. The pardon, therefore, came into effect and, unless there has been a breach of some condition subsequent according to its terms, or some other legal justification for its revocation or avoidance, it is still in effect.

It is claimed that the fact that the pardon was granted solely in contemplation that the petitioner would be deported made his actual deportation an implied condition subsequent, which has not been fulfilled.

But a pardon is to be taken most beneficially for the recipient and most strongly against the authority by which it is granted, wherever its meaning is in doubt. 1 Bishop, New Criminal Law, 8 Ed., Para. 908 (1); 4 Blackstone Comm. 401; Lee v. Murphy, 22 Gratt., Va., 789, 12 Am.Rep. 563, 571; United States v. Debruyn, D.C., 8 F.2d 319, 320. As it is an act of grace, limitations upon its operation should be strictly construed. Osborn v. United States, 91 U.S. 474, 23 L.Ed. 388, 389. This pardon is clear and unequivocal in its terms; even if it were ambiguous the petitioner would be entitled to the benefit of a favorable construction. We cannot read into it the unexpressed condition that the petitioner should be deported nor can we regard this contemplated result as an implied condition under the rule of construction above mentioned.

The language of P.L. 8888 that "the governor shall have all the authority, rights and powers over and in relation to such [conditionally pardoned] person which he would have if he were surety in the case upon the recognizance of such person before conviction," taken by itself, would lead to the conclusion that his power to revoke a conditional pardon is not limited by the violation of the conditions only. In the eye of the law, the conditionally pardoned convict is looked upon as being constantly in the custody of the Governor, who is regarded as his jailer and has "him always * * * upon a string that (he) may pull at pleasure." In re De Palo, 101 Vt. 510, 513, 144 A. 678, 679. A surety on recognizance may at any time, either personally or by agent, arrest and surrender his principal. Worthen v. Prescott, 60 Vt. 68, 72, 73, 11 A. 690; Taylor v. Taintor, 16 Wall. 366, 21 L.Ed. 287, 290; Reese v. United States, 9 Wall. 13, 19 L.Ed. 541, 544; State v. Parent, 132 Me. 433, 172 A. 442, 444; Nicolls v. Ingersoll, 7 Johns., N.Y., 145, 155; and see P.L. 2494.

But in construing a statute a clause cannot be separated from its context. Every part must be considered, and, if possible, effect must be given to every word, clause and sentence. In re Cornell, 111 Vt. 454, 459, 18 A.2d 151, and cas. cit.; Petraska v. National Acme Co., 95 Vt. 76, 79, 113 A. 536; Morse v. Tracy, 91 Vt. 476, 479, 100 A. 923. So the provision of P.L. 8888, placing the Governor in the position of a surety on recognizance is to be read in connection with the remainder of the sentence "and he shall be the sole and exclusive judge as to whether the conditions of such pardon have been violated," and also in connection with the next following sentence giving authority to the Governor to cause the apprehension and return to custody of the paroled convict if in his judgment the conditions of the pardon have been violated. Neither of these two provisions are necessary or of any independent force if the Governor has the wide authority of a surety on recognizance, in pursuance to which he may act...