In re Joseph De Palo

• Decision Date: 06 February 1929
• Parties: IN RE JOSEPH DE PALO
• Court: Vermont Supreme Court

144 A. 678

101 Vt. 510

IN RE JOSEPH DE PALO

Supreme Court of Vermont

February 6, 1929

January Term, 1929.

Present WATSON, C. J., POWERS, SLACK, MOULTON, and CHASE, JJ.

Criminal Law---Pardons---Notation of Time Parol Period Expired on Pardon as Mere Memorandum---Exclusive Power of Governor as to Pardons under Constitution---Release from Conditions of Conditional Pardon---Acts 1919, No. 203---Effect of Lapse of Time between Issue of Executive Warrant for Arrest of One Conditionally Pardoned and Service Thereof.

1. Time during which convict has been at large under conditional pardon is not to be treated as time served upon his sentence.

2. Where there was appended to conditional pardon, signed by Governor, an acceptance by convict, and underneath this, and at bottom of page was notation, "Parol period expires June 12, 1926," held that such notation was no part of conditional pardon, but was to be considered only as memorandum of date of termination of parole on assumption that terms thereof had been complied with.

3. Under Constitution (Const. Vt. Ch. II, 20), pardoning power is vested in Governor, such constitutional prerogative including power to issue conditional pardons, and under Constitution and Acts 1919, No. 203, Governor alone has power to release a convict from condition imposed in granting such pardon.

4. Department of public welfare has no authority to release convict from terms of conditional pardon, as power and discretion relating to pardons vested by Constitution in Governor (Const. Vt. Ch. II, 20), cannot be delegated.

5. Executive warrant issued September 8, 1925, and signed by the then Governor, directing arrest of convict who had been conditionally pardoned, which was not served until January 3 1929, held not invalid by lapse of time between its date and service, nor because term of office of Governor signing warrant had expired at time of service, there being no statute governing matter, and circumstances not establishing that a reasonable time had elapsed, or that there had been neglect or laches on the part of the executive department, or the sheriff or other peace officers.

PETITION to the Supreme Court of Washington County by Joseph De Palo for a writ of habeas corpus to secure his release from confinement in Washington County jail. The opinion states the case.

Judgment that the relator is not unlawfully restrained of his liberty, and he is remanded to his former custody; and his petition is dismissed with costs; including the costs of the commissioner appointed to take the testimony.

Fred A. Jones (of Lebanon, N.H.), and Burton E. Bailey for the relator.

George L. Hunt for the State.

Present: WATSON, C. J., POWERS, SLACK, MOULTON, and CHASE, JJ.

OPINION

MOULTON

This is a petition for a writ of habeas corpus The relator is confined in Washington County jail, held there by virtue of an executive warrant dated September 8, 1925 signed by the Hon. Franklin S. Billings, at that time Governor of this State.

The relator was confined in the House of Correction under a sentence of from 6 to 18 months for the offense of neglecting his children. On April 28, 1925, Governor Billings granted him a conditional pardon, to become effective May 17, 1925. The relator accepted the provisions of the pardon and was released. On September 8, 1925, and during the term of the sentence, Governor Billings became convinced that the relator had violated the terms of the conditional pardon, and issued the executive warrant to which we have referred. Efforts were made to find the relator, but without success, and he was finally apprehended on January 3, 1929.

The relator was not, as he claims in his brief, placed on probation. The record shows that he was conditionally pardoned, which is a very different thing. In re Hall, 100 Vt. 197, 202, 136 A. 24.

The relator contends that the maximum parole period of a prisoner automatically expires by operation of law at the time of termination of the maximum sentence, unless prior thereto he has been apprehended for violation of the terms of the conditional pardon, or is a fugitive from justice where service cannot be had. But this is not so. The time in which the convict has been at large under such conditional pardon is not to be treated as time served upon his sentence. In re McKenna, 79 Vt. 34, 35, 64 A. 77. In re Hall, supra, at page 203 of 100 Vt. (136 A. 24).

To the conditional pardon, signed by the Governor, is appended an acceptance signed by the relator. Underneath this, and at the bottom of the page, is the notation "Parol period expires June 12, 1926." This is relied upon as showing that the terms of the pardon were of no effect after this date. But this notation is no part of the conditional pardon. It is to be...