Fuller v. State

• Decision Date: 01 June 1899
• Citation: 26 So. 146,122 Ala. 32
• Parties: FULLER v. STATE.
• Court: Alabama Supreme Court

26 So. 146

122 Ala. 32

FULLER v. STATE.

Supreme Court of Alabama

June 1, 1899

Appeal from probate court, Montgomery county; J. B. Gaston, Judge.

Petition for habeas corpus by Brooks Fuller. From an order denying the writ, he appeals. Affirmed.

On April 1, 1899, the appellant, Brooks Fuller, by his attorney filed a petition addressed to the judge of probate of Montgomery county. This petition was as follows: "The petitioner alleges that he is illegally restrained of his liberty and detained in the custody of the said W. W. Jones for and on account of the board of convict inspectors, or for and on account of the state of Alabama, because-First. That the governor of the said state of Alabama had no authority to order his recommitment to the penitentiary, or to the custody of the state, as a prisoner, without the said petitioner having first had a day and a hearing before a court which has jurisdiction to determine whether or not he had violated the terms of his parole. Second. Because section 5462, Code 1896 from which the pretended authority for his detention is derived, is unconstitutional, in that (1) it denies to the petitioner the right to be confronted by the accuser or the witnesses against him; (2) it denies him the right of being heard by himself or his counsel upon the accusation lodged against him; (3) it denies him the right of a trial by jury (4) its effect is to suspend the operation of the writ of habeas corpus; (5) the petitioner alleges, further, that he has not violated any of the conditions of his said parole. Third. The petitioner alleges that the mandate of the governor, commanding the sheriff of Montgomery county to arrest petitioner and remand him to the convict department to serve out a sentence, is violative of article 6 of the constitution of the state of Alabama. Fourth. The petitioner alleges that he is further entitled to his discharge in said cause, and that said order of recommitment by the governor of the state of Alabama is done without authority or legal right, because there is now no unexpired sentence for him to serve, the same having expired on August 17, 1897, by operation of law. Wherefore, the premises considered, your petitioner prays that he be discharged from custody." S B. Trapp, the president of the board of convict inspectors, in answer to the writ issued on the filing of this petition, showed that at the August term, 1896, the petitioner, Brooks Fuller, was convicted of the crime of assault with intent to murder, and sentenced to imprisonment in the penitentiary for five years. On November 30, 1896, his sentence was commuted by the governor to one year's imprisonment in the penitentiary. On February 24, 1897, he was paroled by the governor, under the authority of the act now constituting sections 5461 and 5462 of the Code of 1896. On March 29th the following order was issued by the governor: "Chas. E. Parks, Esq., Sheriff of Montgomery County, Ala.. I am informed that Brooks Fuller has violated the terms of the parole granted him by me. You are therefore directed to deliver him to the convict department to serve out his term according to law. Yours, Respty., Jos. F. Johnston, Gov." The president of the board of convict inspectors answered that the petitioner was detained on the said order or writ issued by the governor, and which is copied above. Upon these facts, the probate judge denied the prayer of the petitioner, and remanded the prisoner to the custody of the board of convict inspectors to serve out that portion of the original sentence imposed upon him which was unexpired on February 24, 1897. From this judgment refusing to discharge the petitioner the present appeal is prosecuted, and the rendition thereof is assigned as error.

John W. A. Sanford, Jr., for appellant.

Charles G. Brown, Atty. Gen., for the State.

McCLELLAN C.J.

Section 12 of article 5 of the constitution confers the pardoning power on the governor in this language: "The governor shall have power to remit fines and forfeitures, under such rules and regulations as may be prescribed by law, and, after conviction, to grant reprieves, commutation of sentence, and pardons, except in cases of treason and impeachment." It is the settled law that this grant includes power to grant conditional pardons, the condition to be either precedent or subsequent, and of any nature, so long as it is not illegal, immoral, or impossible of performance, and that a breach of the condition avoids and annuls the pardon. Ex parte Wells, 18 How. 307; Woodward v. Murdock (Ind. Sup.) 13 Cr. Law Mag. 71, and notes (s. c. 24 N.E. 1047); Arthur v. Craig, 48 Iowa, 264; State v. Barnes, 32 S.C. 14, 10 S.E. 611, and cases cited; State v. Wolfer (Minn.) 54 N.W. 1065, and cases cited; note to People v. Cummings (Mich.) 14 L. R. A. 285 (s. c. 50 N.W. 310). The parole of a convict is in the nature of a conditional pardon, and within the constitutional grant of the pardoning power to the governor. The power to grant pardons, absolute or conditional, cannot, of course, be taken away from the executive, nor limited by legislative action, but the general assembly may enact laws to render its exercise convenient and efficient. Kennedy's Case, 135 Mass. 48. The legislature of this state has enacted such a law in respect of that description of conditional pardons known as "paroles," and this statute is now embodied in sections 5461 5462, Code, which are as follows:

"Sec. 5461. Governor may Suspend Sentence and Parole Convict on Good Behavior. The governor may, whenever he thinks best, authorize and direct the discharge of any convict from custody and suspend the sentence of such convict without granting a pardon, and prescribe the terms upon which a convict so paroled shall have his sentence suspended.

"Sec. 5462. Convict Failing to Observe Terms of Parole may be Rearrested and Required to Serve Out Sentence. Upon the failure of any convict to observe the conditions of his parole, to be determined by the governor, the governor shall have authority to direct the rearrest and return of such convict to custody, and thereupon said convict shall be required to carry out the sentence of the court as though no parole had been granted him."

These sections are really not open to construction, and little need be said in their interpretation. The parole does not in any wise displace or abridge the sentence. It merely stops its execution for a time only, it may be, or indefinitely, it may prove. It suspends, not destroys. The suspension is like that which occurs constantly in the administration of criminal laws where the defendant appeals from the judgment of conviction. The execution of the sentence is by the appeal superseded and postponed pending the appeal, and, if the judgment is affirmed, the execution of the sentence thereupon begins, and continues for the period set down originally in the judgment. So the word is used in this statute, and, upon condition broken, the sentence, which has all along hung in its entirety over the liberty...