Sanders v. State

• Decision Date: 04 January 1928
• Docket Number: (No. 11250.)
• Citation: Sanders v. State, 1 S.W.2d 901, 108 Tex.Crim. 467 (Tex. Crim. App. 1928)
• Parties: SANDERS v. STATE.
• Court: Texas Court of Criminal Appeals

1 S.W.2d 901

SANDERS v. STATE.

(No. 11250.)

Court of Criminal Appeals of Texas.

January 4, 1928.

Appeal from District Court, Hunt County; Grover Sellers, Judge.

Raymond Sanders was convicted of a felony, and he appeals from the judgment and a sentence pronounced after setting aside an order suspending sentence. Judgment reversed, and cause dismissed.

Thompson & McWhirter, of Greenville, for appellant.

A. A. Dawson, State's Atty., of Austin, for the state.

LATTIMORE, J.

The opinion handed down herein on November 16, 1927, is withdrawn, and the following substituted therefor:

Appellant was convicted in 1922 in cause No. 3479 of a felony and given a five-year suspended sentence. Thereafter in 1927, in cause No. 4004, he was finally convicted of another felony. In the latter case he was granted a full pardon by Governor Ferguson. Our law provides, in article 779, C. C. P. 1925, if one who has been granted a suspended sentence is finally convicted of any other felony pending the suspension of sentence, the court which has granted such suspension may cause capias to issue for the defendant, if not in the custody of the court, and, upon hearing proof, the court shall pronounce sentence upon the original judgment of conviction. After the second conviction of this appellant, above referred to, upon motion of the state's attorney reciting the facts, a capias was issued for appellant by virtue of which he was arrested and brought into court for the purpose of having the order of suspension set aside in cause No. 3479, and having sentence then passed upon him in accordance with the judgment. When asked by the trial court if he had anything to say why said sentence should not then be pronounced against him, appellant answered that he had been pardoned in cause No. 4004, and produced a full pardon. Notwithstanding this, the learned trial judge proceeded to set aside the order of suspension and sentenced appellant for a period of five years, from which sentence and judgment an appeal was taken and the matter brought before us for review.

The question is not free from difficulty. The right of the state to have the suspension order set aside, and sentence pronounced in cause No. 3479, rests upon the statement of the law in article 779, supra, and upon a showing that during the pendency of a suspended sentence the accused has been finally convicted of some other felony. This was the claim and assertion of the state in the proceeding before the court below in the instant matter. To this claim and assertion of the state he answered:

"I cannot now be arrested, my suspension of sentence set aside, and sentence be pronounced, because I have been granted a full pardon in the second case, conviction in which furnishes the state its supposed basis of right to have me now sentenced, and I am therefore subject to none of the penalties resulting from or depending upon such second conviction."

In Hunnicutt v. State, 18 Tex. App. 498, 51 Am. Rep. 330, this court quotes with approval the following:

"Mr. Bishop says, `A pardon is a remission of guilt.' 1 Bish. Crim. Law, § 898. But the general rule with regard to a full pardon seems to be that it `is to make the offender a new man; to acquit him of all corporal penalties and forfeitures annexed to the offense for which he obtains his pardon, and not so much to restore his former as to give him a new credit and capacity.' 4 Blackst. Com. 402. See, also, Greenleaf's Ev. § 377; People v. Pease, 3 Johns. Cas. 333; Wood v. Fitzgerald, 3 Cr. 568; In re Deming, 10 Johns. 232; State v. Baptiste, 26 La. Ann. 136; Ex parte Hunt [10 Ark.] 5 Eng. 284; Hester v. Commonwealth, 85 Pa. 154; 2 Hawk. P. C. 547, and cases there cited; 1 Phill. Ev. 21; 1 Gilb. Ev. 259."

And in the same opinion appears the following:

"And Mr. Bishop says: `A full pardon absolves the party from all the legal consequences of his crime and of his conviction, direct and collateral, including the punishment, whether of imprisonment, pecuniary penalty, or whatever else the law has provided. * * * Among the collateral consequences of an attainder or final sentence against the prisoner removed by pardon is the incapacity to be a witness. Yet only a full pardon has this effect.' 1 Bish. Crim. Law, §§ 916, 917; Edwards v. Commonwealth, Va. Ct. App. [78 Va. 39, 49 Am. Rep. 377] 1884; 5 Crim. Law Mag., 308."

These statements are repeated in Carr v. State, 19 Tex. App. 635, 53 Am. Rep. 395, and it is further stated:

"A full pardon is a remission of guilt; it releases the offense and obliterates it in legal contemplation. 1 Bish. Cr. L. § 898; Osborn v. United States, 91 U. S. 474 [23 L. Ed. 388]."

See, also, Bennett v. State, 24 Tex. App. 73, 5 S. W. 527, 5 Am. St. Rep. 875.

In Easterwood v. State, 34 Tex. Cr. R. 400, 31 S. W. 294, we said:

"Disabilities arising out of and attaching to a conviction for felony in this state are removed by the absolute pardon. The provisions in the Constitution and the laws of this state, imposing disabilities because of conviction, are not and cannot be limitations upon the authority of the Governor to pardon. It is beyond the power of the Legislature to so restrict the consequences of the pardon. His power is supreme, and beyond the reach of legislative limitations. When a full pardon takes effect, all disabilities disappear, and the grantee stands as if he had never been convicted. A removal of the conviction necessarily removes the disabilities, because they are but consequences of the conviction. This would therefore restore the party to his right of suffrage, and his competency as a juror. The authorities are clear upon these questions, as we understand them."

See Ruling Case Law, vol. 20, §§ 40, 41; also annotations under Law Ass'n v. Wolfe 50 A. L. R. 380-388; State v. Hazzard, 47 A. L. R. 538.

The case of Scott v. State, 6 Tex. Civ. App. 343, 25 S. W. 337, appears almost directly in point. Same was an action of disbarment brought against an attorney under a statute which provided that one who had license to practice law and was...