Muckle v. Clarke

• Decision Date: 16 November 1940
• Docket Number: 13422.
• Citation: 12 S.E.2d 339,191 Ga. 202
• Parties: MUCKLE v. CLARKE, Superintendent of Public Works.
• Court: Georgia Supreme Court

12 S.E.2d 339

191 Ga. 202

MUCKLE v. CLARKE, Superintendent of Public Works.

No. 13422.

Supreme Court of Georgia

November 16, 1940

Syllabus by the Court.

1. Under the express terms of the conditional pardon granted, it was revocable by the Governor without notice or hearing, on violation of its conditions.

2. Whether or not the later executive order purporting to revoke the pardon was ineffectual for that purpose, in that it failed to show a breach of any condition, still, under the terms of the grant, action by the Governor was not made an exclusive method of determining an issue as to breach; and if any condition was in fact broken, the pardon was thereby rendered void, regardless of action by the Governor. If the applicant was entitled to a trial on the question of breach this right was satisfied by the trial before the judge in the habeas corpus case.

3. The evidence introduced by the respondent, for the purpose of showing that the applicant had rendered the pardon void by the commission of a criminal offense in violation of its conditions, was not subject to objection on the ground that it was irrelevant and immaterial. The court did not err in remanding the applicant to custody.

The court remanded to custody the applicant for habeas corpus and he excepted. The brief filed in his behalf states that a supersedeas was granted. From the averments and admissions in the pleadings the following facts appeared, without dispute: In January, 1939, Ben Muckle, the applicant, was convicted, in the criminal court of Fulton County, of the offense of operating a lottery, and was sentenced to serve a term of twelve months on the public works of the county. On November 8, 1939, the Governor granted to him a pardon 'conditioned upon his future good behavior and upon his paying to the clerk of the criminal court of Fulton County the sum of $100, the same to be revocable at the pleasure of the Governor upon violation of the laws of this State, of any of the other States, or of the United States.' Petitioner paid the fine as provided in the order. On March 8, 1940, without any notice to the grantee or opportunity for hearing, the Governor passed an order as follows: 'Whereas, on the 8th day of November, 1939, Ben Muckle, convicted of the operation of a lottery in Fulton County, was granted a conditional pardon, and whereas it has been brought to the attention of the executive department that the said Ben Muckle has been apprehended again for the same offense, it is hereby ordered that the conditional pardon granted to the said Ben Muckle be and the same is hereby revoked, effective immediately; and it is so ordered.' Afterwards the applicant was rearrested for the purpose of serving the remainder of his sentence. The present proceeding followed.

The plaintiff alleged, in his application for the writ, that since the granting of such conditional pardon he has not violated any of the laws of the State of Georgia, or of any other State, or of the United States; but no evidence was introduced in support of this averment, and no other evidence whatever was introduced by the applicant. The facts hereinbefore recited are taken from the allegations in the petition and admissions in the response. The petition further alleged in effect, that, because of the act of the Governor in revoking such conditional pardon without notice or hearing, the present 'detention of petitioner by the respondent is illegal and contrary to law, and denies to petitioner the rights and guaranties provided for him in the constitution of the State of Georgia and in the constitution of the United States, in that petitioner is being denied his liberty without due process of law'; petitioner being a citizen of the State of Georgia and of the United States.

On the trial of the case, the respondent offered in evidence an accusation filed in the criminal court of Fulton County, together with a plea of guilty entered thereon, showing that the applicant was, on March 11, 1940, convicted of the offense of playing and betting for money at a game played with cards, alleged to have been committed on February 8, 1940. This evidence was admitted over objection that it was 'immaterial and irrelevant to the issues involved.' In the bill of exceptions, error is assigned on the admission of this evidence, and on the final judgment denying the writ of habeas corpus and remanding the prisoner to custody.

Attached to the brief filed in this court by counsel for the plaintiff in error is a certified copy of an indictment returned in Fulton superior court, alleging that Ben Muckle did, on February 20, 1940, commit the offense of operating a lottery in that county, and of a verdict thereon, dated June 25, 1940, finding the defendant not guilty. Neither the bill of exceptions nor the record contains any reference whatever to this document or to any fact mentioned therein.

Frank A. Bowers, of Atlanta, for plaintiff in error.

John A. Boykin, Sol. Gen., Bond Almand, Sol., and J. Walter LeCraw, all of Atlanta, for defendant in error.

BELL Justice.

It seems that where a pardon is unconditional and is duly delivered and accepted, it is not subject to revocation. See Const. art. 5,§ 1, par. 12; Code, § 2-2612; Dominick v. Bowdoin, 44 Ga. 357; Grubb v. Bullock, 44 Ga. 379; Ex parte Bess (Bess v. Pearman), 152 S.C. 410, 150 S.E. 54, 65 A.L.R. 1459; 20 R.C.L. 532, § 13. A pardon, however, is a mere act of grace, to which the pardoning power may attach any condition precedent or subsequent which is not illegal, immoral, or impossible of performance; and when a convict accepts such conditional pardon he is bound by all of its valid provisions. 20 R.C.L. 569, § 58; 46 C.J. 1202, § 57. In the present case there is no contention that the conditions of the pardon were invalid. The questions argued in the brief are: (1) whether under the terms of the grant the Governor was authorized to revoke such conditional pardon without notice or hearing; (2) whether the purported order of revocation was effectual for the purpose, in reciting merely that the applicant had 'been apprehended again for the same offense,' and in failing to show that he had committed any offense; and (3) whether the court erred in admitting the evidence that the applicant had been convicted of the offense of gaming, alleged to have been committed on a date which was after the grant of such conditional pardon and before the order of revocation.

On the first question, while it may be true that if a conditional pardon is susceptible of more than one interpretation it should be construed most favorably to the grantee (Crooks v. Sanders, 123 S.C. 28, 115 S.E. 760, 28 A.L.R. 940) yet in this case the order granting the pardon expressly stipulated that it was 'conditioned [upon grantee's] future good behavior and upon his paying to the clerk of the criminal court of ...