State v. Barnes

• Decision Date: 07 January 1890
• Citation: 10 S.E. 611,32 S.C. 14
• Parties: STATE v. BARNES.
• Court: South Carolina Supreme Court

10 S.E. 611

32 S.C. 14

STATE v. BARNES.

Supreme Court of South Carolina

January 7, 1890

Appeal from general sessions circuit court of Richland county; J. J NORTON, Judge.

M. H Moore, for appellant.

P. H Nelson, for the State.

McIVER J.

In this case, the appellant, having been convicted of grand larceny was sentenced to imprisonment, at hard labor, in the penitentiary, for the term of two years. After suffering a portion of the punishment thus imposed, the appellant was pardoned by the governor, "upon condition that he shall leave the state within forty-eight hours, never to return."

An affidavit having been submitted to the court of sessions to the effect that appellant had violated the condition of his pardon by returning to the state, a rule was issued requiring him to show cause why he should not be remanded to the penitentiary, to serve out the balance of the sentence which had been imposed upon him. The appellant appeared, and made return-- First, that he had been pardoned by the governor; second, that his term of imprisonment under the sentence of the court had expired. The circuit judge adjudged the return insufficient, and ordered that appellant be remanded to the penitentiary, to serve out the balance of the sentence originally imposed upon him. From this adjudication and order defendant appeals upon two grounds, as follows: " First. That the condition of the pardon granted the defendant by the governor of South Carolina on December 24, 1883, was illegal and void, while the pardon itself remains absolute; and that his honor erred in holding otherwise. Second. That the term of imprisonment to which the defendant was sentenced in 1883 has expired; and that his honor erred in holding otherwise."

Inasmuch as our constitution, by section 11, art. 3, expressly invests the governor with power to grant pardons after conviction except in cases of impeachment, "in such manner, on such terms, and under such restrictions as he shall think proper," it will not be necessary to look further for his authority to grant a conditional pardon, though it seems to be well settled that such a pardon could be granted in that country from whence we derive a large part of our legal principles. 1 Chit. Crim. Law, 773, 1 Bish. Crim. Law, (6th Ed.) § 914. These authorities show that a pardon may be granted either upon a precedent or a subsequent condition. If the former, then the pardon does not take effect until the condition has been performed; but, if the latter, then the pardon takes effect at once, but becomes void whenever the condition is violated, and the offender may be again brought to the bar, and remanded to suffer his original sentence. But, while this is conceded, it is contended that a pardon granted upon a condition subsequent which is illegal, immoral, or impossible to be performed, becomes an absolute pardon, such a condition being absolutely void; and the contention in this case is that the condition upon which the pardon here was granted--to leave the state, never to return--was illegal, inasmuch as there is no such punishment known...