Ex parte Strauss

• Decision Date: 21 June 1928
• Docket Number: 29050
• Citation: 7 S.W.2d 1000,320 Mo. 349
• Parties: Ex parte Fred Strauss
• Court: Missouri Supreme Court

7 S.W.2d 1000

320 Mo. 349

Ex parte Fred Strauss

No. 29050

Supreme Court of Missouri

June 21, 1928

Petitioner discharged.

Irwin & Bushman for petitioner.

(1) The condition in the commutation requiring discharged prisoner to depart from and remain continuously outside of the County of Cole is illegal and void, as depriving the prisoner of the equal protection of the law. Ex parte Schatz, 269 S.W. 385. (2) The petitioner's apprehension and imprisonment upon alleged breach of the condition of the commutation without conviction before the Judge of the Circuit Court of Cole County, are illegal. Sec. 12523, R. S. 1919. (3) The petitioner's apprehension and imprisonment upon alleged breach of condition of commutation, without a hearing before the court in which he was convicted or before some other court of general criminal jurisdiction, is illegal; and the order of revocation by the Governor upon certification of the prison board is not sufficient. 20 R. C. L. 572; State v Horn, 7 L. R. A. (N. S.) 724; Ex parte Alvarez v State, 50 Fla. 24, 7 Ann. Cas. 90; State v Wolfer, 53 Minn. 135; Hough v. Dyre, 2 Ohio Crim. Dec. 727; Commonwealth v. Haggerty, 4 Brewster (Pa.) 326; People v. Potter, 1 Park Crim. (N. Y.) 47, note 2; Ex parte Patterson, L. R. A. 1915F, 542.

North T. Gentry, Attorney-General, and W. E. Sloat, Special Assistant Attorney-General, for the State.

(1) Petitioner is not deprived of equal protection of the law. When a convict accepts a parole or commutation, he accepts it subject to the conditions of the authority granting it, so long as its conditions are reasonable. Jacobs v. Crawford, 272 S.W. 932; Ex parte Mounce, 269 S.W. 387. (2) Hearing before judge was not necessary. (a) It was not necessary to have petitioner taken before the Circuit Judge of Cole County, as provided by Sec. 12523, R. S. 1919. This section has been held unconstitutional. Ex parte Schatz, 269 S.W. 384. (b) The commutation was granted by the Governor, and, unless provided for by statute, no court would have jurisdiction to hold a hearing on revocation. This would clearly be an invasion of the rights and powers of the executive as accorded him by the Constitution.

Ragland, J. Walker C. J., and White, Atwood and Gantt, JJ., concur.

OPINION

RAGLAND

Habeas Corpus. On a trial duly had in the Circuit Court of Jackson County, Missouri, petitioner was, on September 6, 1924, convicted of robbery in the first degree and sentenced to imprisonment in the State Penitentiary for a term of five years. Pursuant to such sentence he was thereafter imprisoned until the 5th day of August, 1927, when he was discharged under a conditional commutation granted by the Governor. The executive order recited:

"This commutation is granted, however, upon and made subject to the express condition that the recipient hereof shall forthwith depart from Cole County, Missouri, and continuously remain outside of said county. If recipient shall fail to comply with this condition, then this commutation shall stand forfeited and the original sentence shall stand and remain in full force."

Thereafter, on April 12, 1928, the Commissioners of the Department of Penal Institutions reported to the Governor that evidence had been presented to them that petitioner had violated the terms and conditions of the commutation granted him, in that on various dates subsequent to August 5, 1927, he had been in Jefferson City, in Cole County, Missouri, and had not continuously remained outside of said county. In connection with their report they recommended that the commutation theretofore granted petitioner be revoked. On May 4, 1928, the Governor revoked the commutation, and petitioner was arrested and returned to the penitentiary to serve the remainder of the term for which he was originally sentenced. The order of revocation recited that it had been made to appear to the Governor that the petitioner had violated the condition of the commutation in this: that he had not continuously remained outside of Cole County.

The petitioner neither admits nor denies that he violated the condition of the commutation; he asserts: first, that the condition operates to deprive him of the equal protection of the law; and, second, that even if it be valid, he cannot be imprisoned for an alleged breach of it until that fact has been judicially determined.

I. The Constitution, Section 8, Article V, provides:

"The Governor shall have power to grant reprieves, commutations and pardons, after conviction, for all offenses, except treason and cases of impeachment, upon such conditions and with such restrictions and limitations as he may think proper, subject to such regulations as may be provided by law relative to the manner of applying for pardons."

The Governor may therefore attach to a commutation granted by him any condition he chooses, provided it is not illegal, immoral or impossible of fulfillment. [Ex parte Mounce, 269 S.W 385.] And the condition in this case to-wit: that the petitioner depart from and remain continuously outside of Cole County, is not illegal, or...