Scrivnor v. State

• Decision Date: 28 June 1928
• Docket Number: (No. 11850.)
• Parties: SCRIVNOR v. STATE.
• Court: Texas Court of Criminal Appeals

20 S.W.2d 416

SCRIVNOR v. STATE.

(No. 11850.)

Court of Criminal Appeals of Texas.

June 28, 1928.

State's Rehearing Denied October 9, 1929.

Second Motion for Rehearing Denied November 6, 1929.

Appeal from District Court, Galveston County; C. G. Dibrell, Judge.

W. S. Scrivnor was convicted as a second offender of robbery and sentenced to life imprisonment, and he appeals. Reversed and remanded.

Maury Hughes, of Dallas, and Elmo Johnson and L. M. Kenyon, both of Galveston, for appellant.

D. B. MacInerney, Co. Atty., and Ralph Crawford, Asst. Co. Atty., both of Galveston, and A. A. Dawson, State's Atty., of Austin, for the State.

LATTIMORE, J.

Conviction for robbery; punishment, life imprisonment in the penitentiary.

A statement of the facts in this case would add nothing to the opinion, and same is therefore omitted.

Appellant seeks reversal on but one point. The indictment, in addition to charging the robbery which forms the basis for the prosecution herein, also sets up that at a former time appellant had been convicted of another robbery in Dallas county, Tex.; the purpose of this being to bring the case within the provisions of article 62, Pen. Code 1925, so that appellant, if convicted, might be given the highest penalty for robbery, and this was in fact done.

Upon the ground that he had been granted a full, free, and unconditional pardon by Gov. Miriam Ferguson in the former case, and that the judgment of conviction in said case, therefore, could not properly be made a predicate for plea and proof of his former conviction for the same or a similar offense, appellant objected to the indictment, the judgment, and proof upon the ground of his having been so pardoned. There seems no dispute of the fact of the granting of such pardon, or of its full and unconditional character; hence we are faced only by the question as to its effect. Appellant relies on Sanders v. State, 108 Tex. Cr. R. 467, 1 S.W.(2d) 901, 57 A. L. R. 440. The state does not question the soundness of the opinion in that case, but differentiates same and cites many authorities.

To us it seems a question resting entirely on the effect given by us to a full and unconditional pardon. If such pardon properly absolves its grantee from all legal consequences attached to and flowing from his conviction, the contention of appellant must be sustained. Otherwise not. 20 Ruling Case Law, §§ 40, 41, p. 556, upon citation of a great number of authorities, says: "In the case of a full pardon, it relieves the punishment and blots out of existence the guilt of the offender, to such an extent that, in the eye of the law, he is as innocent as if he had never committed the offense. It has been held that the effect of a pardon cannot be so restricted, even by express terms, as to leave the person with the legal disabilities still resting upon him. Such a restriction would be repugnant to the grant and void; for, although the disabilities are no part of the judgment, they are attached to the convict as the legal marks of infamy resulting therefrom, and, when the offense is pardoned, the judgment, with the legal consequences flowing from it, is removed." It is said in section 41, Id.: "It is now the accepted doctrine that a full pardon absolves the party from all legal consequences of his crime." Among other authorities which support this statement are Osborn v. United States, 91 U. S. 474, 23 L. Ed. 388; Knote v. United States, 95 U. S. 149, 24 L. Ed. 442; Carr v. State, 19 Tex. App. 635; Bennett v. State, 24 Tex. App. 73, 5 S. W. 527, 5 Am. St. Rep. 875; Diehl v. Rodgers, 169 Pa. 316, 32 A. 424, 47 Am. St. Rep. 908; Fite v. State, 114 Tenn. 646, 88 S. W. 941, 1 L. R. A. (N. S.) 520, 4 Ann. Cas. 1108. However, under section 44 Id., it is stated that there is an irreconcilable conflict of authorities on the question as to whether a prior pardoned offense may be considered as a prior conviction, and attention is called to the fact that by statute in some states it is expressly provided that such conviction, though pardoned, may thereafter still be pleaded and proved as such prior conviction. In case where such statutes exist, if they be constitutional, there would seem no trouble; nor would there be any trouble in case the pardon granted was conditioned on its grantee thereafter observing and keeping the laws; but we confess ourselves wholly unable to accept the definition of a full pardon agreed upon by practically all the courts, and as set out above in this opinion, and then turn around and destroy our acceptance of such definition, and contradict ourselves by holding that part of the legal consequences only are removed by such pardon, and part remain.

To hold on the one hand that a full pardon absolves its grantee from all legal consequences of the conviction, and on the other that by virtue of the law, and with its sanction, the fact of such conviction may be thereafter pleaded and proved in order to increase such grantee's punishment in a subsequent case, and that such holdings are not in conflict, seems to us but a play on words, a sort of fraud on reason and logic. The enhancement of the punishment in the second prosecution depends on the former conviction; and of stark necessity, such enhancement is in consequence of such former conviction, and in strict legal consequence thereof. The fact that this particular consequence does not arise and is not called into life, and has no application, save and except there be a subsequent charge against such party makes absolutely no difference in the legal principle applicable. Not till the bar sinister be invoked by the arising of some subsequent occasion does the right to testify as a witness, to vote, to hold office, to sit on the jury, in regard to property in some states, call for assertion and exercise of the restored disabilities consequent upon granting of a full pardon. Absolution from the legal consequence of the conviction, which has resulted from the fact of pardon, has existed in each such case since the grant and acceptance of such pardon.

Turning to the authorities cited by the state in its brief and argument herein, we note that it refers to Carlesi v. New York, 233 U. S. 51, 34 S. Ct. 576, 577, 578, 58 L. Ed. 843, as holding a contrary view to that expressed by us. In the opinion therein the court said: "As the state courts held that the statute directed the consideration of the prior conviction despite the pardon, we must treat the case as if the statute so expressly commanded, and test its repugnancy to the Constitution of the United States upon that assumption." Further, the court says:

"Determining as we do only the case before us, that is, whether the granting of a pardon by the President for a crime committed against the United States operates to restrict and limit the power of the state of New York to punish crimes thereafter committed against its authority, and in so doing to prescribe such penalties as may be deemed appropriate in view of the nature of the offense and the character of the offender, taking in view his past conduct, we must not be understood as in the slightest degree intimating that a pardon would operate to limit the power of the United States in punishing crimes against its authority to provide for taking into consideration past offenses committed by the accused as a circumstance of aggravation, even although for such past offenses there had been a pardon granted.

"Indeed, we must not be understood as intimating that it would be beyond the legislative competency to provide that the fact of the commission of an offense after a pardon of a prior offense should be considered as adding an increased element of aggravation to that which would otherwise result alone from the commission of the prior offense."

It thus appears that the extent of the holding in said case is that when there is a statute making a former pardoned conviction usable in a subsequent case for the purpose of enhancing the punishment, this is not a violation of the rights of the accused. We have no complaint of this view, but will venture the suggestion that the end thus desired might be better reached by a condition in the pardon requiring observance of law thereafter by the grantee.

The holdings of the Kentucky courts, beginning with Mount v. Commonwealth, 2 Duv. 95, are also stressed in the brief of the state herein. In the case mentioned it was said: "The pardon relieved the convict of the entire penalty incurred by the offense pardoned, and nothing else or more. It neither did nor could relieve from any penal consequence resulting from a different offense, committed after the pardon, and never pardoned. The increased punishment prescribed by statute for the subsequent offense was no part of the penal consequences of the first offense, but applied exclusively to the last as aggravated by its repetition of the same crime. The legislature, as required by justice and policy, ought to have provided a severer punishment for repeated than for only one crime; and whether it had done so by duplicating, for a second offense, the punishment of the first, or by any other measure of augmentation, cannot be material. In any aspect, the augmented punishment is for the last, and not at all for the first offense; and, of course, a pardon of the first could, in no way or degree, operate as a pardon of the last offense or remission of any portion of the punishment denounced for the perpetration of it."

All these cases proceed on the theory that the enhanced penalty is in no sense a necessary legal consequence of the prior and pardoned offense. With the utmost deference, the position seems wholly unsound. A commits burglarly of B's house. The punishment is two to twelve years for the offense which A has thus committed. He may have committed a burglary every day for five years prior, but this latter fact could not be either pleaded or proved in our practice; this by reason of the law. But, if he at a...