In re Conditional Discharge of Convicts

• Decision Date: 29 May 1901
• Citation: 51 A. 10,73 Vt. 414
• Parties: IN RE CONDITIONAL DISCHARGE OF CONVICTS
• Court: Vermont Supreme Court

51 A. 10

73 Vt. 414

IN RE CONDITIONAL DISCHARGE OF CONVICTS

Supreme Court of Vermont

May 29, 1901

Submitted to the Governor May 29, 1901

OPINION

To His Excellency,

William W. Stickney,

Governor of the State of Vermont:

SIR:--

In reply to your foregoing requirement for the opinion of the Judges of the Supreme Court upon the construction of the statute relating to the conditional discharge and the paroling of convicts in the state prison and house of correction, we have the honor to submit the following opinion:

The power to grant pardons is given to the executive by the constitution in unrestricted terms, except in cases of treason, murder, and impeachment; and that such general power includes the authority to grant all kinds of pardon known to the common law, is well settled. The grant may be for a full partial, absolute, or conditional pardon, provided the condition be not illegal, immoral, or impossible to perform 2 Hawk. P.C. 547; Ex Parte, Wells, 18 HOW 307; Lee v. Murphy, 22 Gratt. 789, 12 Am. Rep 563. This power can neither be restricted nor taken away by legislative action. Nor can a like power be given by the legislature to any other officer or authority: Cooley's Con. Lim. 133.

Section 5306 of the Vermont statutes provides that the governor may discharge a convict in the state prison or house of correction, sentenced by the authority of the state, on such conditions as he judges proper. Such a discharge is a conditional pardon, the full authority to grant which is vested in the executive by the constitution. A conditional discharge under the provisions of this statute is not unlike a conditional pardon, except in name which is of but little consequence. An instrument was issued under the seal of the United States by President Munroe, in which he directed for causes therein stated, that the prisoner "be forthwith released from prison," and it was held to be a pardon: Jones v. Harris, 1 Strob. 160. In a similar instrument issued by President Jackson, he used the words "do hereby remit unto him, * * * the remainder of said sentence, and order him to be liberated from further imprisonment on payment of the costs," and this was held to be a pardon: Hoffman v. Coster, 2 Whart. 453. In that case the court said, "it does not appear that any particular language or form of words is necessary in such an instrument. In some of the ancient pardons, a variety of language is to be found; such as acquit, pardon, release, and exonerate. In others, only the word pardon;" and further, that in Pennsylvania the practice is to recite the offense, conviction, and sentence, and then remit the sentence; also that at common law, referring to 3 Co. Inst. 235, remitting the indictment pardoned the offense, and after sentence, remitting the sentence had the same effect.

A discharge under the statute embraces all within the punishment except that which has already been executed, and if the prisoner performs the conditions imposed, he is forever free from further execution. A pardon with like conditions, under the executive prerogative, can do no more; for, as hereinafter will be shown, neither is a remission of guilt.

No. 126, laws of 1898, was approved November 16, and took effect from its passage. By section 1, a board of prison commissioners is established. By section 8, all the duties and powers conferred upon the governor by sections 5306 to 5309 inclusive, of the Vermont statutes, are conferred upon and given to the prison commissioners, and the governor is relieved therefrom as to all convicts sentenced after the passage of that act. The effect of this act would be to transfer the power of conditional pardon from the governor to the board of prison commissioners, which, as before seen, cannot be done by legislative action; and section 8 of No. 126 is unconstitutional and void.

The other provisions of section 5306, and the provisions of sections 5307, 5308, and 5309 relate to the procedure and remedy in case a convict fails to perform the conditions of his discharge, and they are dependent upon the power to make the grant; for without the exercise of that power, there is nothing to which such provisions can apply. Herein it is impossible to give effect to the manifest intent of the legislature with the power to grant the discharge taken away; and as the provisions touching the latter are unconstitutional, the whole must fall together: Cooley's Con. Lim. 209-213; Allen v. Louisiana, 103 U.S. 80.

By section 10 of No. 126, sections 5306 to 5309 inclusive, are continued in force as to all convicts sentenced before No. 126 was passed, and the provisions of that act do not apply thereto. Except as to the convicts named, those sections of the Vermont statutes were thereby repealed by implication, upon the principle that where a statute enumerates the persons or things to be affected by its provisions, there is an implied exclusion of all others: Suth. on Stat. Const. sec. 327. By section 4 of No. 104, laws of 1900, sections 8 and 10 of No. 126, laws of 1898, are expressly repealed; but sections 5306 to 5309 inclusive, were not thereby revived: V. S. 29.

Therefore, questions one, two, three, and nine submitted, are severally answered in the affirmative.

The questions submitted relative to the authority of the governor to issue warrants for the return of the prisoners who have violated the conditions of their discharge, involve his authority in that regard generally, as well as under section 5309, V. S., which has been repealed except as to convicts sentenced before November 16, 1898.

The authorities seem to agree that when a convict fails to perform the conditions of his pardon, he is liable to be remitted to his original sentence. This is the only logical result, for by non-performance of the conditions the pardon becomes void, and the prisoner is in the same state in which he was at the time his pardon was granted. The statute provides that if the convict fails to perform the conditions he shall be deemed to have escaped, and shall be liable to be returned to the prison from which he was discharged and imprisoned for the whole term for which he was sentenced; and if returned, the term of his sentence shall be deemed as commenced at the time of his return and continue thereafter the whole term of the sentence. This is not remitting the prisoner to his original sentence. It is the creating of a new offense with a penalty therefor. At common law, the non-performance of the conditions of a pardon is not an offense, but by the provisions of this statute, it is deemed an escape; and the extent of the penalty to be imposed is measured only by the time a convict serves on his original sentence before he receives his conditional discharge. Before a person can be thus punished, his guilt must be established by a plea of guilty, or by trial had in due course of criminal procedure: Kennedy's case, 135 Mass. 48; State v. Wolfer, 53 Minn. 135, 39 Am. St. Rep. 582; Ackle's case, 1 Leach 390; Miller's case, 1 Leach 74; Madam's case, 1 Leach 223; 23 Ir. L. T. 523. The original mittimus is not issued in a prosecution for this new offense, therefore it has no force therein. It follows that a copy issued under the provisions of section 5309 can have none. As to all convicts sentenced after No. 126, laws of 1898, took effect, resort would need be had to the common law for the proper procedure in case a convict fails to perform the conditions of his pardon, unless the conditions contain a provision that upon a non-compliance therewith, the prisoner may be apprehended and remitted to his former custody upon the governor's warrant issued for that purpose. We think such a provision may be inserted in the conditions of the pardon itself, and when it is thus inserted, the prisoner voluntarily submits himself thereto by accepting the pardon, and he is bound thereby: Arthur v. Craig, 48 Iowa 264, 30 Am. Rep. 395; State v. Wolfer, supra. In the case of United States v. Wilson, 32 U.S. 150, the court, speaking through Mr. Chief Justice Marshall, said a pardon was a deed to the validity of which delivery was essential, and delivery was not complete without acceptance; and in Ross v. McIntyre, 140 U.S. 453, speaking through Mr. Justice Field, the court said there could be no question as to the binding force of the acceptance.

At common law if sentence had been imposed, and the convict is at large, he may be brought to the bar and remanded to suffer his original sentence: Bacon's Abr. tit. Pardon, E; 1 Chit. Cr. Law 773; State v. Wolfer, supra. And from Ackle's case, Miller's case, Madam's case, and the Irish Law times before cited, it would seem that such statutory offense and penalty therefor, do not supercede the common law procedure. They may co-exist, and the latter may be invoked in any case suitable therefor.

Therefore, except as above otherwise indicated, questions five, six, seven, and eight are answered in the negative.

By section 1 of No. 127, Laws of 1898, it is provided that when a convict is sentenced to the state prison or house of correction otherwise than for life, or as an habitual criminal, the sentence shall not be for a fixed term of imprisonment, but a maximum and minimum term shall be established; and by section 7, the act applies only to offenses committed subsequent to the time when it took effect,--November 16, 1898,--while as to all previous offenses the law continues the same as before the act was passed. Although such a sentence is in terms indeterminate it is in law for the maximum term; for until the expiration thereof a convict is in the custody of the law under his sentence, and in confinement unless he can be and is paroled by the board of prison commissioners under the provisions of this act, after the...