People v. Moore

• Decision Date: 21 July 1886
• Court: Michigan Supreme Court
• Parties: PEOPLE v. MOORE.

29 N.W. 80

62 Mich. 496

PEOPLE v. MOORE.

Supreme Court of Michigan

July 21, 1886

Exceptions from Jackson.

Information for violating the conditions of a pardon under which respondent had been released from the penitentiary where he was serving out a sentence for burglary. Respondent was convicted and sentenced, and now brings error.

The Attorney General, for the People.

Jas. C & Chas. B. Wood, for respondent.

MORSE J.

The respondent, James H. Moore, was convicted of the crime of burglary in the recorder's court for the city of Detroit October 31, 1882, and sentenced to imprisonment in the state's prison at Jackson for the term of seven years. During his confinement there, and on the twenty-ninth day of October, 1885, Hon. Russell A. Alger, governor of this state under his hand and seal, commuted the sentence of said respondent to four years from the thirty-first day of October, 1882, "on condition that he do absolutely abstain from visiting places where intoxicating liquors are sold, from using intoxicating liquors as a beverage, and from associating with bad characters, having a criminal reputation." On the thirteenth day of January, 1886, the respondent was released from prison, having become, by said commutation, and his good behavior while confined, entitled to his release, under the laws of this state. On the eighteenth of March, 1886, a police officer arrested the respondent, and handed him over to the warden of the state's prison, where he was confined until the twenty-eighth day of April, 1886, when he was brought into the circuit court for the county of Jackson, and arraigned upon an information filed against him by the prosecuting attorney of that county. He was then remanded to the prison, where he remained until the day of trial, May 10 1886. The officer who arrested him speaks of having a warrant, and making a return upon it, but no mention other than this statement is found in the record or on file in the county clerk's office at Jackson. If there was any process at all it must have been issued by some person having no right to issue it, or by some magistrate to whom it was never returned, or, if returned, never acted upon. The arrest, under the circumstances, was virtually without process, and at the mere order of the warden of the prison.

The respondent's counsel, in the court below, moved to quash the information for the reasons that there had been no preliminary examination before the filing of the same; that the respondent had no opportunity until the day of trial to know the character of the witnesses against him; that the information was founded upon an unconstitutional statute, conflicting both with the constitution of the United States and of the state of Michigan. The motion was promptly overruled, and the trial proceeded, resulting in the conviction of the respondent, followed by a sentence committing him to the state's prison for three years, as the balance of his unexpired term under the first commitment.

The pardoning power in this state is vested exclusively, by the constitution, in the governor. It provides that "he may grant reprieves, commutations, and pardons, after convictions for all offenses, except treason and cases of impeachment, upon such conditions, and with such restrictions and limitations, as he may think proper, subject to regulations provided by law relative to the manner of applying for pardons." Section 11, art. 5. The legislature, in 1861, added four sections, relative to conditional pardons, to chapter 170 of the Revised Statutes of 1846, now being found in Howell's a Statutes as sections numbered 9630, 9631, 9632, and 9633. Section 9631 provides that the agent of the state's prison, or the keeper of any other penal institution, may, when it comes to his knowledge that a pardoned convict has violated the conditions of his pardon, forthwith cause him to be arrested and detained according to the terms of his original sentence. Section 9632 provides that such agent or keeper, arresting such convict, shall forthwith notify the prosecuting attorney for the county where such agent or keeper resides, who shall file an information before the circuit court next to be held in said county, "in the same manner as other informations are filed, so that it may be judicially determined whether the condition of the pardon or remission of punishment has been broken by the convict." It is also provided by the same section "that no examination of such convict need be had before any justice of the peace, or other committing magistrate, before the filing of such information." The last section, (9633,) upon the admission of the convict, or finding of the jury, that the condition has been violated, authorizes his remanding and confinement for the unexpired term of his original sentence. If it appears to the court, by verdict of the jury or otherwise, that he has not broken the condition of his pardon, he shall be discharged.

Under this act of the legislature the information in this cause was filed, charging the respondent, while being at large, and out of the state's prison, under the commutation and discharge of sentence, with having, at the city of Jackson, on the eighteenth day of March, 1886, violated the conditions of said commutation by visiting places where intoxicating liquors were sold, drinking liquors as a beverage, and becoming intoxicated from such use of intoxicating liquor. The question of the constitutionality of this proceeding is directly raised here.

Under the constitution of the United States, and of our own state, no man can be deprived of his liberty without due process of law. The legislature of this state cannot grant a pardon or commute a sentence, except in the case of treason, where the governor has suspended the execution of the sentence, and referred the case to that body for action. State Const. � 11, art. 5. Nor has the legislature power to abridge a pardon or commutation, or deprive a man of his liberty under it, except by constitutional methods. When a person has been set at liberty under the pardon or the commutation of his sentence by the executive, he becomes once more a full citizen, clothed with all the rights, privileges, and prerogatives that belong to any other freeman. He cannot be sent out half free and half slave. He is not to be let out with a rope around his body, as it were, with one end in the hands of the warden, to be hauled back at the caprice of that officer. He must go out a free man, and remain a free man until he breaks the condition of his pardon. He must enjoy the blessings and benefits that belong to an American citizen until he has violated the law of his release. His character may be tarnished and his reputation soiled by his imprisonment, but his rights as a citizen are unimpaired. He is clothed, as he passes out of the prison door, with the same garb of freedom that was removed from him when he went in. He has the right to his liberty the same as any other citizen, so long as he keeps the condition of his pardon, and he cannot be deprived of that liberty save in the mode prescribed by the constitution and laws of our state as applied to any other citizen. If the breaking of the condition is in the nature of a crime, or punished as such with penal consequences, that crime, or act punished as a crime, must be established as any other crime would be. He is presumptively innocent until proven guilty, and his guilt must be established under the due forms of law, and by the same processes applied to others. There can be no special legislation separating him, in his rights and privileges, from his fellows, and shackling some of his prerogatives. As some under our institutions are entitled to special privileges, so none can be shorn by special legislation of any portion of their rights and franchises as freemen. If a condition is imposed that he shall not do any thing or things, this does not hamper or abridge his rights or liberties until the condition is broken. And, in order to remand and confine him in prison again, the fact of the violation of such condition must be established by the due administration of the law, as in other cases of the violation of the penal statutes. The authority conferred upon the agent of the state's prison, or the keeper of any other penal institution, to arrest and detain such person in his prison or house of correction, without complaint or warrant, and to keep him there without bail, and without preliminary examination, as a convict, until the prosecuting attorney of the county may choose, when the next term of court opens, to file an information against him, cannot be tolerated or permitted under our constitution, and is repugnant to the spirit of our institutions.

By the operation of this statute the person pardoned and absolved from the penal consequences of his crime, we must presume for good cause, is not free, upon his release. He is subject to the will of a master. The warden, or other official, can reach out his hand, at any moment, and pull him back into prison, governed by no restrictions save the will of the officer. When the warden's hand is laid upon the released convict, he becomes his absolute servant and prisoner until the prosecuting attorney gets time or sees fit to move. This arbitrary power and authority over the liberty of another is possessed by no other officer in our government, in times of peace. It cannot lawfully exist in a free country. This case illustrates within itself the utter wrong and injustice of such a proceeding. The respondent is arrested upon the eighteenth of March, without any lawful process, at the mere will of the warden of the prison, upon his suspicion, from hearsay, that the condition of his pardon had been broken and is confined in the prison,...