State ex rel. Bedford v. McCorkle

• Decision Date: 18 July 1931
• Citation: 40 S.W.2d 1015,163 Tenn. 101
• Parties: STATE ex rel. BEDFORD v. McCORKLE, Warden.
• Court: Tennessee Supreme Court

40 S.W.2d 1015

163 Tenn. 101

STATE ex rel. BEDFORD v. McCORKLE, Warden.

Supreme Court of Tennessee.

July 18, 1931

Appeal from Circuit Court, Davidson County; A. B. Neil, Judge.

Habeas corpus proceedings by the State, on the relation of Robert Bedford, against A. A. McCorkle, Warden, etc. To review a judgment dismissing the petition, relator appeals in error.

Affirmed.

Robert L. Sadler, of Nashville, for plaintiff in error.

W. F Barry, Jr., of Nashville, for defendant in error.

SWIGGART J.

This is an action to secure the release of the relator, Robert Bedford, from prison, by the writ of habeas corpus.

Bedford was given a conditional pardon by the Governor on March 8 1929, relieving him of the unexpired portion of a term of ten years for abduction. He was returned to the penitentiary on September 24, 1929, for a breach of the condition of the pardon, by virtue of a warrant of the Governor, issued under authority of Shannon's Code, § 7236.

The pardon was conditioned that Bedford "obey the law in every way, lead the life of a good citizen, and refrain from the use, sale, manufacture or possession of all kinds of intoxicants contrary to our laws, or of other conduct in the judgment of the Governor improper." The pardon provided that, upon breach of the stated conditions, "without question or review he shall be taken into custody on the Governor's warrant to serve the remainder of his sentence in this case."

The warrant issued by the Governor for the recommitment of the relator recites that he "has not kept the law and has not conducted himself as a good citizen." Relator's petition recites that the action of the Governor was based upon a specific charge that relator was guilty of transporting whisky in violation of statutes of the state, of which charge he was innocent. The circuit court heard the evidence submitted by the parties on this issue, and found that the relator committed the offense as charged. This finding is abundantly sustained by the evidence in the record before us.

The relator's petition, addressed to the circuit court sought his release on only three grounds: (1) That he had not breached the condition of the pardon; (2) that he could not lawfully be recommitted without a judicial determination of the fact of the breach; and (3) that the Governor was without power to fix conditions in the pardon granted to relator, and that such conditions were void.

The circuit court ruled against the relator on each of the three issues, and dismissed the petition. The relator alone was granted an appeal in the nature of a writ of error. He assigns as error that the circuit court erred in holding (1) that the Governor has the power to grant a conditional pardon and be sole judge of whether or not the conditions have been broken; and (2) that there was any evidence to sustain the judgment dismissing the petition and writ. The two assignments of error follow the two grounds of the motion for a new trial made in the trial court.

The Constitution of Tennessee, article 3 section 6, provides that the Governor "shall have power to grant reprieves and pardons, after conviction, except in cases of impeachment."

The Code of Tennessee, section 5261 (Shannon's Code, section 7236), provides: "The governor may grant pardons upon such conditions and with such restrictions and limitations as he may deem proper, and may issue his warrant to all proper officers to carry into effect such conditional pardon."

The Governor's power to pardon is not restricted except as expressly provided in the section of the Constitution quoted, and there is no reasonable basis for argument that a pardon may not be issued with conditions attached. This was recognized by this court in Battistelli v. State, 141 Tenn. 567, 213 S.W. 417, and is supported by a long list of authorities elsewhere, cited in a note in 60 A. L. R. 1410, 1411. We are referred to no contrary holdings. The power to grant an absolute pardon includes the power to grant a pardon on condition, especially since it is the right of the convicted person, to whom the pardon is offered as an act of grace, to refuse to accept it if unwilling to comply with the conditions imposed. Battistelli v. State, supra; State ex rel. Barnes v. Garrett, 135 Tenn. 617, 626, 188 S.W. 58, L. R. A. 1917B, 567; Ruling Case Law, vol. 20, p. 569 (Pardons, § 58).

This power of the Governor is not derived from the statute or code section quoted, but the statute, recognizing the constitutional power of the Governor, is in aid of the power, by providing for the issuance of a warrant by the Governor "to carry into effect such conditional pardon."

The warrant issued by the Governor for the arrest and recommitment of the relator in this case, for breach of the conditions of the pardon, is such a...