State ex rel. O'Connor v. Wolfer
| Decision Date | 27 April 1893 |
| Citation | 54 N.W. 1065,53 Minn. 135 |
| Parties | State ex rel. Thomas O'Connor v. Henry Wolfer, Warden |
| Court | Minnesota Supreme Court |
Argued April 6, 1893
Original petition of Thomas O'Connor made February 18 1893, for a writ of Habeas Corpus directed to Henry Wolfer Warden of the State Prison at Stillwater, to have the body of the petitioner, together with the authority for his imprisonment before this court, to do and receive what shall be considered in the premises.
The petitioner was on December 2, 1880, convicted in the District Court of Le Sueur County of the crime of murder in the first degree, and sentenced to be imprisoned in the State Prison at Stillwater during the term of his natural life. A commitment was on the same day issued, and he was conveyed to said prison and there confined. On October 1, 1890, William R Merriam, then Governor of this State, upon the petition of the Judge, prosecuting attorney, and nine of the jury, and a large number of the citizens of that county, granted a full pardon to the petitioner, upon the condition therein expressed that he take up his residence outside the State, and maintain the same outside the State during the balance of his life; otherwise the pardon to become null and void and be held for naught.
On the next day the petitioner was released, and he went immediately to St. Paul, and by telegram notified his wife, at Madison Lake, in Blue Earth county, of his pardon, and directed her to dispose of his farm and personal property, and meet him at St. Paul, and go with him to Detroit, Michigan. She sold the property, and on October 10, 1890, started for St. Paul to meet him, but, as she was about to take the train, she was stricken with paralysis. He was notified of this fact by telegram and went to her, procured a physician and medicine, and then concealed himself in the vicinity to avoid the public, until he could take a train to leave the State. On Monday morning, October 13, 1890, as he was going to the station to take the train, he was arrested without warrant, and conveyed to the county jail of Le Sueur county, and there kept in confinement until October 16, 1890. On that day the Governor issued his warrant to the said Warden reciting the conviction and conditional pardon of the petitioner, and stating that he had not left the State, and was then in the custody of the Sheriff of Le Sueur county, and declaring the pardon to be null and void, and directing the Warden to retake the petitioner wherever he might be found, and return him to the State Prison, and there detain him in custody, to be dealt with in accordance with the terms of his original sentence and commitment.
Under this warrant the petitioner was again taken to the State Prison, and there confined. On January 13, 1893, he presented his petition to Hon. W. C. Williston, one of the Judges of the District Court of Washington County, setting forth these facts, and praying for a writ of Habeas Corpus. The writ was granted, and he was taken before the Judge, and proofs were submitted. On February 13, 1893, that Judge made his decision remanding the petitioner to the custody of the Warden. On February 18, 1893, petition was presented to this court, setting forth these facts, and praying that a writ of Habeas Corpus issue. The application was ordered to be heard on April 6, 1893, before this court.
It is ordered that the relator be discharged from custody.
H. H. Gillen and J. C. Nethaway, for petitioner.
There are but two questions involved in this application: First. Had the conditions of the pardon been violated at the time the petitioner was apprehended? Second. Being a conditional pardon, had the Governor or authorities the right to recommit the petitioner to the custody of the Warden of the prison without giving him a trial or hearing before the court that sentenced him, or a court of superior jurisdiction, that he might have an opportunity to show that the conditions of his pardon had not been violated?
Sickness is an excuse for not complying with the conditions of the pardon. Rex v. Thorpe, 1 Leach, (4th Ed.) 396, and note; State v. Smith, 1 Bailey's L. 283. As to the second question -- Millers' Case, 1 Leach, 74; Madan's Case, 1 Leach, 223; Aickles' Case, 1 Leach, 303; Sir Walter Rawleigh's Case, Cro. Jac. 495; Ratcliffe Case, Foster, 40; Rex v. Rogers, 3 Bur. 1810; State v. Addington, 2 Bailey, 516; State v. Fuller, 1 McCord, 178; State v. Chancellor, 1 Strobh. 347; State v. Barns, 32 S.C. 14; People v. Potter, 1 Park. Cr. Rep. 47; People v. James, 2 Cai. 57.
A convict, having received a conditional pardon, cannot be recommitted without a hearing in a court of competent jurisdiction, as to whether he had violated the conditions of his pardon. People v. Moore, 62 Mich. 496; People v. Cummings, 88 Mich. 249. Blackstone gives a form of petition to the court to remand after release from original sentence. 2 Cooley's Blackstone, appendix; 1 Bishop, Crim. Pro. §§ 1383-1384. On careful examination the following cases will be found not in conflict: Ex parte Marks, 64 Cal. 29; Arthur v. Craig, 48 Iowa 264; Kennedy's Case, 135 Mass. 48.
H. W. Childs, Attorney General for the State.
The Governor may annex to a pardon any condition, whether subsequent or precedent, not forbidden by law. And it lies upon the grantee to perform the condition. If the condition is not performed, the original sentence remains in full vigor and may be carried into effect. Cole's Case, Moore, 466; State v. Smith, 1 Bailey, 283; Addington's Case, 2 Id. 516; People v. Potter, 1 Park. Cr. Rep. 47; United States v. Wilson, 7 Pet. 150; In re Greathouse, 4 Saw. 489; State v. Chancellor, 1 Strobh. 347.
The proper steps have been taken to enforce the original sentence. It is admitted that the prisoner is the same person, and it is further admitted that, though pardoned and released on the 1st of October, 1890, he was still in the State on the 13th day of October, 1890.
As the respondent traversed none of relator's allegations of fact, the petition for the writ must, for the purposes of this hearing, be taken as true. Therefore no statement of facts other than a reference to this petition is necessary.
That the pardon granted to relator was conditional, and that the condition was a valid one, cannot admit of doubt. The power to grant conditional pardons is conceded. The statute, 1878 G. S. ch. 119, which is but declaratory of the common law, expressly so provides.
A pardon being wholly a matter of mercy, the governor may impose any condition that he pleases, at least provided it is neither immoral, impossible, nor illegal. The condition in this case, to wit, that the prisoner "take up his residence out of the state, and maintain the same outside of the state during the balance of his life," was neither immoral, impossible, nor illegal. The fact that this condition precedes the operative part of the pardon, which, if taken by itself, would be unconditional, is unimportant. Taking the whole instrument together, it is perfectly evident that the intention was that the pardon should be subject to this condition.
It appears that about a week after the pardon had been issued, and the relator discharged, the governor, without giving him any opportunity to be heard, issued his order to the warden of the penitentiary by which, after assuming to recite the condition of the pardon and the nonperformance of it by the relator, he declared the pardon null and void, and directed the warden to arrest the relator, and return him to the state prison, to be there kept in confinement, in accordance with the judgment of the court before which he had been convicted; that upon the authority of this order alone the relator was shortly afterwards arrested, and without any trial or hearing in court or otherwise, and without being given any opportunity to be heard as to whether he had violated the conditions of his pardon, was returned to the state prison, where he is still confined.
The main question, and the one which presents itself at the threshold of this case, is whether a person who has been discharged on a conditional pardon can be recommitted to the state prison without any hearing or adjudication, upon the mere order of the governor, who has assumed to determine ex parte that the condition of the pardon has not been performed. It seems to us that such a course is warranted neither by law nor by a just regard for the personal liberty of the citizen. It is, of course, well settled...
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