State ex rel. Davis v. Hunter

• Decision Date: 13 July 1904
• Citation: 124 Iowa 569,100 N.W. 510
• Parties: STATE EX REL. DAVIS v. HUNTER, WARDEN.
• Court: Iowa Supreme Court

124 Iowa 569

100 N.W. 510

STATE EX REL. DAVIS

v.HUNTER, WARDEN.

Supreme Court of Iowa.

July 13, 1904.

Appeal from District Court, Jones County; B. H. Miller, Judge.

This is an appeal by defendant, Hunter, as warden of the penitentiary at Anamosa, from an order made in a habeas corpus proceeding discharging Frank Turner from further imprisonment in said penitentiary under commitment on conviction for the crime of murder in the second degree, and a sentence of 17 years' imprisonment at hard labor. Affirmed.Chas. W. Mullan, Atty. Gen., C. J. Cash, Co. Atty., and F. O. Ellison, for appellant.

Tom H. Milner, for appellee.

McCLAIN, J.

After the applicant for this writ of habeas corpus had served more than 9 years of his 17 years' sentence, and when, under the provisions of the statute as to diminution of sentence for good conduct (Code, § 5703, which is a substantial re-enactment of the provisions of Acts 18th Gen. Assem. c. 154, § 1, which was in force when the applicant was committed), he would have been entitled to his discharge on serving for a further period of 63 days without any misconduct authorizing a forfeiture of the good time which he had earned or would be entitled to earn under the provisions of that statute, his sentence was suspended by the Governor; the terms of the suspension being that it should remain in force during the pleasure of the chief executive, and might be revoked by said executive, and the prisoner remanded for further execution of the sentence, and that the prisoner accepted the suspension with the full understanding that it might be so revoked, and that “whatever allowance and rebate he may have heretofore earned by reason of good conduct while incarcerated in the penitentiary will be forfeited by operation of such revocation, and he will be thereupon recommitted to serve the remaining period of his original sentence, without any rebate or allowance for good time heretofore earned.” It was also stated in the order of suspension that the prisoner would be expected to abstain from the use of intoxicating liquors, and from frequenting places where intoxicants were sold or kept for sale, and in other ways so conduct himself as to justify the conclusion that the public welfare would not be endangered by the continuation of the suspension. About 2 1/2 years after the prisoner had been released under this executive order, information was received at the executive office that the person whose sentence had thus been suspended was under arrest in Connecticut for the crime of assault, and that he had been conducting himself in such a manner as to justify the conclusion that the public welfare was very seriously endangered by his being at large. Without specifying the details of the information as to his conduct, it is sufficient to say that it was to the effect that he had been guilty of the grossest criminal misconduct, and was a disorderly, desperate, and dangerous person, and that, instead of complying with the specific requirement not to frequent places where intoxicants were sold or kept for sale, he had been engaged in the keeping and illegal sale of intoxicating liquors, for which offense a warrant of arrest had been made out, but not served on account of his flight. The communication to the executive office in which this information was conveyed was from a prosecuting attorney in Connecticut, but, as the court below refused to allow this communication to be introduced in evidence, we need not further refer to it. It is sufficient to say that the Governor appears to have had reasonable ground on which to base his order, issued immediately after the receipt of this communication, specifying that, for good and sufficient reasons appearing to him, the suspension of sentence was revoked; and by the order said Davis was directed to be apprehended, and returned to the warden of the penitentiary at Anamosa, to be confined in said penitentiary “for the whole of his unexpired term of sentence.” In pursuance of this order, said Davis was returned to the penitentiary, and, after serving such length of time as to more than cover the 63 days which he would have been required to serve, had his sentence not been suspended, and had he continued to pursue such a course of good conduct in the penitentiary as would have entitled him to the benefit of the statutory provisions, he brought this writ of habeas corpus to secure his release.

It is argued by counsel for the prisoner that the order of recommitment only authorized confinement for 63 days, but, construing the order of revocation in the light of the language used in the order of suspension, we think it was the plain intention of the Governor that he should be kept in confinement for the additional period of more than 7 years for which he might have been confined under the original sentence, without the benefit of the statutory provision as to good conduct; and therefore we have before us the question whether the Governor, in granting a suspension of sentence to a prisoner in the penitentiary, may lawfully impose as a condition to be accepted by him the requirement that, in the event of the revocation of the suspension by the Governor in his discretion, the prisoner may be reimprisoned, with the penalty of a forfeiture of the diminution of his sentence which, under the statute, he would have enjoyed, had he not accepted the benefits of the suspension.

The power to grant reprieves, commutations, and pardons conferred upon the Governor by Const. art. 4, § 16, includes the power to grant a conditional pardon. Arthur v. Craig, 48 Iowa, 264, 30 Am. Rep. 395. And an indefinite suspension of sentence on conditions is undoubtedly, in practical effect, a conditional pardon. It was said by this court in the case just...