Ex parte Reno

• Decision Date: 31 October 1877
• Citation: 66 Mo. 266
• Parties: Ex parte RENO.
• Court: Missouri Supreme Court

66 Mo. 266

Ex parte RENO.

Supreme Court of Missouri.

October Term, 1877.

Petition for Habeas Corpus.

Ewing & Pope for petitioner.

1. A delivery to the prisoner, or to the Warden, or to any one for the prisoner, is sufficient. Commonwealth v. Halloway,44 Penn. Stat. 218; In the matter of De Puy, 3 Benedict's U. S. Dist. Ct. 307.

2. Being in possession of the grantee, it is presumed to have been duly delivered at the time it bears date. Billings v. Stark, 15 Fla. 297.

3. Being placed in the hands of a third party by the Governor for the prisoner, there is a delivery, although lost, destroyed or embezzled, while in such hands. Henrichsen v. Hodgen, 67 Ill. 179.

4. Anything done by the grantor in a deed, from which it is apparent a delivery was intended, either by words or acts, or both combined, is sufficient. The record of a deed raises a legal presumption that it has been delivered. Kille v. Ege,79 Penn. St. 15.

J. L. Smith, Attorney-General, for respondent.

1. Section 21, article 5, of the constitution of 1865, provides that the Secretary of State shall keep a register of the official acts of the Governor, &c. and the same provisions are embodied in the General Statutes of 1865, p. 139, Sec. 2. In the absence of such register, and it is not pretended that any was kept, the pretended commutation was not an official act of the Governor.

2. Gov. Brown expressly stated, on signing the commutation, that it must be so registered, or that he should consider it to be invalid. This was a condition precedent, and, unless observed, rendered the commutation invalid. Commonwealth v. Halloway,44 Penn. St. 210; 2 Hale, P. C., pp. 542-3-8-9; U. S. v. Wilson, 7 Peters 150; State v. Leak, 5 Ind. 359; U. S. v. Stetter, 1 Whart. Crim. Law, (15th Ed.) 766, note.

3. No delivery of the commutation had been made January 11th, 1873, and Gov. Woodson s general order revoking all orders issued by Gov. Brown, not then delivered, had the effect of annulling the commutation. State v. McIntire, 1 Jones (N. C.) 1; Bird v. Breedlove, 24 Ga. 622; Ex parte De Puy, 3 Ben. D. C. 307.

NORTON, J.

This is a proceeding by habeas corpus, on the part of John Reno, who alleges in his petition that, on the 16th day of January, 1868, he was convicted by the circuit court of Daviess county of burglary and larceny, and his punishment assessed at twenty-five years imprisonment in the penitentiary; that he is now confined in said penitentiary by the warden thereof, under said judgment and commitment; that on the 8th day of January, 1873, his sentence and punishment was commuted to ten years imprisonment by B. Gratz Brown, the then Governor; that he has served out his commuted sentence of ten years, and is entitled to his discharge, but that, notwithstanding this fact, he is still detain by James R. Willis, the warden, in confinement in said prison, who refuses to discharge him.

To the writ issued on the petition, the said Willis makes return and admits that he holds said Reno in custody by virtue of the judgment and sentence of the circuit court of Daviess county, sentencing him to twenty-five years imprisonment from the 16th day of January, 1868, but denies that said sentence has been commuted as alleged, and denies that petitioner is entitled to his discharge.

Petitioner filed his plea of commutation, which sets out the original pardon, signed by Governor Brown, as the ground upon which he claims his discharge. This we shall treat as an answer to the return, and shall consider the replication filed thereto as making up the issues in the case.

In the reply it is admitted that the then acting Governor, B. Gratz Brown, on the 8th of January, 1873, issued the paper attached to the plea, but it is denied that it had the effect to commute the punishment of petitioner from twenty-five years to ten years.

1st, Because it was never delivered;

2nd. Because it was never registered in the office of the Secretary of State;

3rd. Because the condition, requiring it to be registered in said office, was never complied with, and it was never entered on the prison records;

4th. Because said pardon or commutation revoked by Governor Woodson, the successor of Brown.

1. PARDON OR COMMUTATION: when executed not revocable.

It may be observed, as preliminary to the consideration of these questions, that a pardon or commutation is a mere matter of grace, and until this act of clemency is fully performed, neither benefit nor rights can be claimed under it. Simple intention on the part of the executive to bestow a pardon, confers no right, and is perfectly nugatory until the intention may be said to be fully completed. This intention may be said to be fully completed when the pardon is signed by the Executive, properly attested, authenticated by the seal of the State, and delivered, either to the person who is the subject of the favor, or to some one acting for him, or on his behalf. Whenever these things are done, the grantee, or donee of the favor, becomes entitled as a matter of right to all the benefits and immunities it confers, and of which he cannot be deprived by revocation or recall. Commonwealth v. Halloway, 44 Penn. St. 218. If these are correct principles governing such cases, and we think they are, the application of them to the evidence in this case will render the solution of the questions presented for our determination free from difficulty.

It is not pretended that the commutation reducing the punishment of petitioner from twenty-five to ten years, was procured by fraudulent or corrupt practices. On the contrary, Governor Brown testifies that he was induced to issue it from the conclusion which he had reached after much consideration, that ten years imprisonment was a sufficient punishment in any case where the party was sentenced for an offense committed against property. That he intended to issue the pardon, and in point of fact did issue it is clear beyond controversy, and indeed, stands admitted in the pleadings.

2. CONSTRUCTIVE DELIVERY OF A PARDON.

Was it delivered by him to the prisoner or any one for him? We think the evidence shows that it was. Governor Brown testifies that on the morning of the last day of his term of office, when he went to his office, he found persons there to remind and urge anew the matter of Reno's pardon; that he went to the office of the Secretary of State, got a pardon in the usual form filled in, with the exception of the term and the name, took it to his office, and after some little further thought, inserted the name and the reduction of his term of imprisonment to ten years, and handed the paper to one of the parties present in the ante-room, stating that it must be inscribed at the prison, and filed in the office of the Secretary of State before 12 o'clock, or he should consider it invalid, as he would be out of office at that hour. Now, it is impossible for the mind to resist the conclusion that the person to whom the pardon was delivered, was acting for and on behalf of Reno. If so, the delivery was complete, and the right of Reno to the benefits it bestowed, became fully established. But the delivery is further shown by the evidence of Bradbury, who was a deputy warden of the prison on the 8th of January, 1873, and who swears that, in the evening of that day he saw the commutation in the hands of Dougherty, the warden, who directed his clerk Haly to make an entry of it on the prison records; that the clerk, thereupon, with the paper before him lying on the table, made the following entry opposite the name of Reno, “commuted from twenty-five years to ten;” that he was looking over the shoulders of the clerk and saw him make the entry; that about one month...