Fehl v. Martin
Citation | 155 Or. 455,64 P.2d 631 |
Parties | FEHL v. MARTIN, Governor, et al. |
Decision Date | 19 January 1937 |
Court | Supreme Court of Oregon |
In Banc.
Appeal from Circuit Court, Marion County; L. G. Lewelling, Judge.
Suit by Earl H. Fehl against Charles H. Martin, Governor of Oregon and others. From a decree dismissing the suit, plaintiff appeals.
Affirmed.
Irvin Goodman, of Portland, for appellant.
Ralph E. Moody, Asst. Atty. Gen. (I. H. Van Winkle, Atty. Gen., on the brief), for respondents.
On August 15, 1933, Earl H. Fehl was committed to the Oregon State Penitentiary under an indeterminate sentence of four years. Subsequently and on May 29, 1936, after having served two years, nine months, and fourteen days, he was paroled by the Governor under certain conditions stated in the parole. He now brings these proceedings, claiming that, under section 13-1906, Oregon Code 1930, his term had expired and he was entitled to a final discharge.
That section reads as follows:
It seems obvious from a mere reading of the section, that that section was intended to apply to the granting of paroles and was not intended by the Legislature, where no parole was granted, to shorten the term for which a prisoner had been sentenced. That the Legislature had the power to provide that, because of the good behavior of a prisoner in the penitentiary, his sentence should be shortened and to determine to what extent it should be shortened is not questioned. If such had been the intention of the Legislature, it is reasonable to infer that the Legislature would have said so in some plain and unmistakable manner without any reference to the granting of paroles and, if the act has the meaning now contended for by the plaintiff, it seems plain that it contains two subjects of legislation and not one subject and matters properly connected therewith, as is required by section 20 of article 4 of the State Constitution, and, hence, is in violation thereof. That an act shortening the time of a sentence which has already been passed and an act authorizing the Governor of the state to parole a prisoner while serving such sentence are two entirely distinct matters having no connection with each other is clear. One is not germane to the other, nor is there any proper connection between the two, and nothing is said in the title of the act or in the title to any of the amendatory acts in respect to the shortening of the terms of the sentences of prisoners in the penitentiary for good behavior or otherwise. That subject, therefore, is not expressed in the title of any of said acts.
While it is true that the Legislative Assembly may, by a general statute, fix the terms of imprisonment of persons convicted of crime and may also, by a general law applicable to all prisoners alike, shorten the term for which they have previously been sentenced because of their good behavior during confinement, yet the Legislature, except in treason cases, is, under our Constitution, wholly devoid of any pardoning power.
Section 14 of article 5 of the State Constitution provides:
It will thus be seen from a mere reading of this provision of the Constitution that the whole power to grant reprieves, commutations, and pardons after conviction for all offenses except treason, subject to such regulations as may be provided by law, is committed to the Governor. Under the statute above referred to the Governor is vested with the exclusive authority to grant paroles. At the time our Constitution was adopted, the granting of a parole to a person who had been convicted of a crime and was being imprisoned in the penitentiary was unknown to our law. The word "parole" at that time meant an agreement of persons who had been taken prisoner by an enemy that they will not again take up arms against those who captured them, either for a limited time or during the continuance of the war. See Bouv.Law Dict. According to that author, statutes authorizing the granting of paroles were first passed in certain of the states in 1897, and such provisions were not adopted in this state for several years thereafter.
According to Bouvier, "reprieve" is the withdrawing of a sentence for an interval of time, which operates in delay of execution. 4 Bla.Com. 394. And a "commutation" is a change of punishment to which a person has been condemned to one less severe. A pardon, says Bouvier, may be absolute or conditional, an absolute pardon being one which frees the criminal without any condition whatever, while a conditional pardon is one to which a condition is annexed, performance of which is necessary to the validity of the pardon.
Our statute provides for conditions to be annexed to the granting of paroles. See section 13-1910, Oregon Code 1930. It is fair to assume from the provisions of our statutes, that a parole is a conditional pardon. If that is so, the constitutional power of pardoning vested in the Governor is not subject to legislative control, either to limit the effect of a pardon or to exclude from its operation any class of offenders. Ex parte Garland, 4 Wall. 333, 18 L.Ed. 366. And, therefore, no act of the Legislature could take away from the Governor the power to grant an absolute or a conditional pardon at any time after sentence has been pronounced.
It has been argued that a prisoner in the Oregon Penitentiary ought not to be deprived of the hope of having his term of imprisonment shortened by good behavior as would result from our holding that the statute applies to the granting of paroles only and has no application generally to the shortening of the terms of imprisonment in all cases where the prisoners' conduct during their confinement has been exemplary.
Every one will agree that good conduct, when actuated by good motives, is always commendable and should be encouraged even in the case of persons convicted of crime. A modicum of common sense, however, teaches every inmate of the penitentiary that good conduct upon his part during his term of confinement is, not only the best, but also the only sensible course for him to pursue and, hence, good conduct of a prisoner alone is not necessarily any evidence of his fitness for a parole. The warden and other officers of the penitentiary-who come into daily contact with the prisoner and have an opportunity to judge of his true character-are the best judges of whether his character is such that he should be paroled before the expiration of his term or be compelled to serve his full sentence. The law contemplates that these officers shall exercise judgment in determining whom they shall recommend to the Governor for parole and who shall be compelled to serve their entire term. Hence, that argument, if it could have any weight in the construction of a statute, must, in this case, fail, since the language of the statute itself shows that it was intended to apply to the time in which a parole may be granted by the Governor and was to have no application to the shortening of any term where no parole was granted.
The numerous cases where the...
To continue reading
Request your trial-
Ex parte Anderson
...and until his return to custody, the prisoner 'shall be considered a fugitive from justice.' O.C.L.A. § 26-2308. In Fehl v. Martin, 155 Or. 455, 64 P.2d 631, 633, the petitioner brought habeas corpus, contending that the term of his sentence in the penitentiary had expired. From an opinion ......
-
State Ex Rel. Conrad R. Engweiler v. Felton
...decision, and it could initiate a parole decision by recommending that the governor parole an inmate. Id.; see also Fehl v. Martin, 155 Or. 455, 455–56, 64 P.2d 631 (1937) (quoting then-effective statutes providing for governor's power to parole inmates on governor's motion, or on recommend......
-
Marteeny v. Brown
...That is incorrect. A commutation is "a change of punishment to which a person has been condemned to one less severe." Fehl v. Martin , 155 Or. 455, 459, 64 P.2d 631 (1937). It is "[t]he executive's substitution in a particular case of a less severe punishment for a more severe one that has ......
-
Marteeny v. Brown
... ... A ... commutation is "a change of punishment to which a person ... has been condemned to one less severe." Fehl v ... Martin, 155 Or. 455, 459, 64 P.2d 631 (1937). It is ... "[t]he executive's substitution in a particular case ... of a less severe ... ...