Jamison v. Flanner

Citation228 P. 82,116 Kan. 624
Decision Date10 July 1924
Docket Number25,311
PartiesS. H. JAMISON, Appellee, v. A. L. FLANNER, Sheriff of Johnson County, Appellant
CourtUnited States State Supreme Court of Kansas

Decided July, 1924

Appeal from Johnson district court; JABEZ O. RANKIN, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

1. HABEAS CORPUS--Governor Has No Authority to Grant Commutation of Sentences Without Notice. Construing R. S. 62-2216 and R S. 62-2220, it is held, the latter does not confer upon the governor authority to grant commutations of sentences without notice.

2. SAME--Duty of Keeper of Prison on Presentation of a Pardon to Him by a Prisoner. The keeper of a jail or prison to whom a pardon is presented by a prisoner is justified in declining to honor it if any question suggests itself or is raised as to the authority of the pardoning official to issue it, or as to its interpretation, or as to whether conditions named therein have been complied with.

3. SAME--Court May Inquire into the Authority of the Pardoning Officer to Issue a Pardon. A court will not inquire into the motive which prompted the pardoning officer to grant a pardon, but will inquire into the authority of the pardoning officer to issue the pardon in question and will interpret and construe it.

4. SAME--Passing Upon Pardon by Court--Prosecuting Attorney May Appear and Controvert It--Court Must Pass Upon Its Validity. When a pardon is called to the attention of a court for its ruling thereon, whether in a habeas corpus proceeding or in any other proceeding or cause, it may be controverted by the prosecuting attorney, and must be expounded by the court.

5. SAME--Purpose of Pardon or Commutation of Sentence. The granting of a pardon is an act of grace bestowed by the government through its duly authorized officers or department, and is designed to relieve an individual from the unforeseen injustice, because of extraordinary facts and circumstances peculiar to his case, of applying to him the punishment provided in a general statute which under ordinary circumstances is just and beneficial.

6. SAME--Pardoning Power is a Power of Government Inherent in the People--Neither Naturally Nor Necessarily an Executive Power. The pardoning power is neither naturally nor necessarily an executive power. It is a power of government inherent in the people, who by constitutional provision may vest it in whole or in part in any official they choose.

7. SAME--Constitutional Authority of the Governor to Exercise the Pardoning Power. Our constitution provides (art. 1, § 7): "The pardoning power shall be vested in the governor, under regulations and restrictions prescribed by law." Held, this includes the power to grant commutations of sentences, to grant pardons and commutations with or without conditions, and to remit fines and forfeitures. And further held, (a) the legislature may make such regulations and restrictions upon the pardoning power of the governor as it deems best; (b) a pardon or commutation of sentence issued by the governor without compliance with the regulations and restrictions prescribed by law is void.

C. B. Griffith, attorney-general, C. W. Gorsuch, county attorney, and S. T. Seaton, of Olathe, for the appellant.

C. B. Little, F. D. Hedrick, C. L. Randall, and S.D. Scott, all of Olathe, for the appellee.

OPINION

HARVEY, J.:

This is a habeas corpus proceeding to test the validity and effect of a commutation of sentence issued by the governor in a criminal case. There was judgment for the petitioner, and the respondent has appealed.

In a criminal action pending against him in the district court of Johnson county, in which he was charged with the unlawful possession of intoxicating liquor, S. H. Jamison entered a plea of guilty and was sentenced to pay a fine of $ 100 and the costs of the prosecution, and to be confined in the county jail thirty days and until the fine and costs were paid, and a commitment for him was duly issued to the sheriff. The governor commuted his sentence by issuing the following charter of conditional commutation:

"To All to Whom These Presents Shall Come, Greeting:

"WHEREAS, S. H. Jamison was convicted on the 7th day of May, 1923, in the district court of the county of Johnson, of the crime of violation of prohibitory law, and sentenced to the county jail for the term of thirty days, $ 100 fine;

"AND WHEREAS, The said S. H. Jamison, by petition duly signed, has made application for commutation of sentence, and satisfactory reasons appearing to me:

"Now, therefore, by virtue of authority vested in me by the laws of this state, I do commute the said sentence by reducing the term thereof to one day and payment of fine and costs, and that the said S. H. Jamison refrain from further violation of the law.

"IN TESTIMONY WHEREOF, I have hereunto subscribed my name and caused to be affixed the great seal of the state.

"Done at Topeka, this 21st day of May, A. D. 1923.

"JONATHAN M. DAVIS.

"(Seal.) By the Governor:

"FRANK J. RYAN, Secretary of State.

"By E. A. CORNELL, Asst. Secretary of State."

Jamison paid the fine and costs, served one day in jail, then presented his commutation to the sheriff and demanded his release. The sheriff declined to release him. He then filed in the district court his petition for writ of habeas corpus, naming the sheriff as respondent, alleging the above facts and attaching a copy of the governor's commutation. The sheriff filed a return in which he set out that he was holding the petitioner under the judgment of the court and the commitment issued to him, and he attacked the governor's commutation as having been issued without jurisdiction, and alleged that it was void for the reason, among others, that no notice of the application therefor was given to the trial judge or to the county attorney, and that no notice thereof was published for thirty days in the official county paper as required by law. At the hearing it was admitted that the petitioner had paid the fine and costs and that he had served one day in the county jail. It was further admitted that no notice of the application for commutation or pardon had been given the district judge or county attorney, and that no notice had been published as required by R. S. 62-2216. The court rendered judgment granting the writ and discharging the petitioner, and the respondent has appealed.

The questions presented call for the construction of the following constitutional and statutory provisions relating to pardons and commutations:

"The pardoning power shall be vested in the governor, under regulations and restrictions prescribed by law." (Const., art. 1, § 7.)

"That the governor may pardon, parole or commute the sentence of any person convicted in any court in this state of any offense against any law thereof, and upon such terms and conditions as he may prescribe in the pardon, parole or commutation of sentence, but no such pardon, parole or commutation of sentence shall be granted except upon notice to the trial judge and prosecuting attorney of the county in which the conviction was had, nor until after notice shall have first been given for thirty days of such application for a pardon, parole or commutation of sentence by publishing such notice in the official county paper of such county. The notice so printed shall state the name of the applicant, the time and place when and where the application will be made, and the offense of which the applicant was convicted. That upon the granting of a pardon, parole or commutation of sentence, a certified copy of such pardon, parole or commutation of sentence shall be sent to the clerk of the district court of the county in which the conviction was had, who shall make a record thereof in the proceedings of the case in which the conviction was had." (R. S. 62-2216.)

"The governor may, when he deems it proper and advisable, commute a sentence in any criminal case by reducing the penalty as follows: First, if in a capital case, to imprisonment for life, or for a term not less than ten years at hard labor; second, if the sentence of the court be for imprisonment, with or without hard labor, by reducing the duration thereof; third, if a fine, by reducing the amount thereof; fourth, if a fine and imprisonment, by reducing either or both." (R. S. 62-2220.)

As originally enacted (Laws 1864, ch. 89; Gen. Stat. 1868, ch. 73), R. S. 62-2216 did not contain the italicized words as printed above. These were added (and some changes made, not here material), by chapter 273 of the Laws of 1921. Prior to this amendment the statute made no specific mention of notice of applications for commutations. The petitioner contends that since R. S. 62-2220, which when enacted permitted commutations by the governor "when he deems it proper and advisable," was not amended in 1921, there are now two methods of procedure in granting commutations: (a) when applied for by the person convicted there must be notice (R. S. 62-2216); and (b) when the governor "deems it proper and advisable," acting independently of the application of the petitioner, he may commute the sentence without notice. (R. S. 62-2220.) We think the statute is not open to that interpretation. As the sections now stand the effect of R. S. 62-2220 is to place certain restrictions upon commutations, but this section does not authorize the granting of commutations without the notice required by R. S. 62-2216. Even if petitioner's theory is correct it would avail him nothing in this proceeding, for the commutation shows upon its face that it was granted upon his application, and on his interpretation of the statute it is necessary for him to give the statutory notice, which it is admitted was not done.

It is contended by the petitioner that since the commutation...

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