State v. Shumaker

• Decision Date: 28 December 1928
• Docket Number: 25,147 1/2
• Citation: 164 N.E. 408,200 Ind. 716
• Parties: State of Indiana v. Shumaker
• Court: Indiana Supreme Court

164 N.E. 408

200 Ind. 716

State of Indiana v. Shumaker

No. 25,147 1/2

Supreme Court of Indiana

December 28, 1928

Petition for Rehearing Overruled April 2, 1929.

1. PARDONS---Governor's Power.---The only power of the Governor to grant pardons is that conferred on him by 17 of Art. 5 of the Constitution (150 Burns 1926). p. 719.

2. CONSTITUTIONAL LAW---Sovereign Power---Vested in Citizens---Power to do as They Please.---In this state, all sovereign power is vested in the citizens of the state, who have the power, by virtue of such sovereignty, to do whatever they please, except as limited by themselves in the Constitution. p. 720.

3. CONSTITUTIONAL LAW---Division of Government into Three Departments---Control of One Department by Another.---Under the provisions of 1, Art. 3 of the Constitution (103 Burns 1926), providing that the powers of government shall be divided into three departments, and that no person charged with official duties under one of these departments shall exercise any of the functions of the other, one department of the state government may not be controlled or even embarrassed by another department unless so ordained in the Constitution. p. 720.

4. CONSTITUTIONAL LAW---Supreme Court's Powers---Include Power to Protect Itself from Defamatory Attack.---The Supreme Court, in the exercise of its functions and duties, has certain inherent powers, one of which is to maintain itself free from defamatory, degrading and libelous attack, which debases its character, without thereby arrogating to itself supremacy over the other departments of the state government p. 720.

5. CONTEMPT OF COURT---Prosecution not "Criminal Prosecution"---Accused not Entitled to Trial by Jury.---A prosecution for contempt of court is not a criminal prosecution within the meaning of 13 of the Bill of Rights of the Constitution (65 Burns 1926) providing that "in all criminal prosecutions," the accused shall have the right to a public trial by an impartial jury p. 722.

6. CONTEMPT OF COURT---Summary Proceeding---Incidental to Proper Administration of Justice.---A proceeding for contempt of court is not a criminal prosecution in the sense that it is used in the Constitution, though presented by information, but is summary in character, and incidental to the proper administration of justice and the unintimidated and unembarrassed functioning of the court. p. 722.

7. CONTEMPT---Of Supreme Court---May be Instituted by any Citizen of State.---A prosecution for contempt of the Supreme Court, by virtue of a fiction of law, is instituted by the people themselves; the presentment is not limited to the Attorney-General, but may be presented by any citizen of the state. p. 723.

8. CONSTITUTIONAL LAW---State Government---How Conducted---Each Department Exercises its Own Powers.---The state government is best conducted in the manner provided by the Constitution, that is, divided into three departments, each department exercising its own delegated powers, and, unless hindered by the Constitution, exercising such inherent powers as will protect it in the performance of its duties. p. 723.

9. CONSTITUTIONAL LAW---Power of Legislature to Define Contempt.---The General Assembly is without power to abridge the power of the courts to determine what are contempts against them and punish therefor, and this precludes the legislature from defining what shall constitute a contempt and making it a crime. p. 724.

10. PARDONS---Contempt of Court---Governor Cannot Pardon for.---A prosecution for contempt of court is not a criminal action, and one guilty of contempt of court is not guilty of an "offense" within the section of the Constitution which grants to the Governor power to pardon for all "offenses" except treason and cases of impeachment (150 Burns 1926). p. 724.

11. CONTEMPT---Of Supreme Court---Power to Enforce Judgment of Conviction.---By reason of the Supreme Court's inherent power to receive and try a charge of contempt against it, it has the power to enforce the execution of its judgment against the accused notwithstanding the power to pardon granted to the Governor of the state. p. 725.

Original action by the State of Indiana against Edward S. Shumaker for contempt of the Supreme Court. Respondent, having been found guilty and sentenced to the State Farm for sixty days, was released by order of the Governor, after granting a pardon. The court found that the Governor had no power to pardon for contempt of court, and ordered a reincarceration under the original sentence.

Original action by the State of Indiana against Edward S. Shumaker for contempt of the Supreme Court. Respondent, having been found guilty and sentenced to the State Farm for sixty days, was released by order of the Governor, after granting a pardon. The court found that the Governor had no power to pardon for contempt of court, and ordered a reincarnation under the original sentence.

Arthur L. Gilliom, Attorney-General, William Thompson and Solon J. Carter, for the State.

Bingham & Bingham and Ethan A. Miles, for respondent.

Travis J. Martin, C. J., dissents with opinion. Gemmill, J., concurs in the dissenting opinion.

OPINION

Travis, J.

Heretofore the respondent in this action was held in contempt of this court (State v. Shumaker [1927], ante 623, 200 Ind. 623, 157 N.E. 769), and judgment was rendered that for such contempt he be fined in the sum of $ 250 and that he be confined on the Indiana State Farm for a period of sixty days. Thereafter the respondent filed with the court his motion for a new trial and a rehearing. And still later a petition was filed by respondent to withdraw his last motion for a new trial and a rehearing. Thereupon October 18, 1928, the clerk of the court issued and directed to the sheriff of this court a commitment. October 19, 1928, the sheriff, by virtue of such commitment, delivered the body of respondent Shumaker into the custody of the superintendent of the Indiana State Farm for confinement, as adjudged by the court. The same day, to wit, October 19, 1928, the Honorable Ed. Jackson, Governor of the State of Indiana, issued a conditional pardon to respondent, to the effect that he be pardoned from serving the sixty days at the Indiana State Farm on condition that he pay the fine and costs adjudged against him. The fine and costs were paid by respondent on said October 19, and thereupon the superintendent of the Indiana State Farm released respondent from custody by virtue of the conditional pardon issued by the Governor, and respondent was set at liberty under and by the authority of the pardon so issued. Thereupon, to wit, October 19, 1928, an information by the Attorney-General of the state was filed in this cause in this court, informing the court of the action of the Governor attempting to pardon respondent, as hereinbefore set forth, and alleging that the pardon so given was void because of the want of power of the Governor as the chief executive officer of the state, to pardon respondent as attempted here to do, under and by the authority of the Constitution of the state granting to the Governor the power to pardon. Art. 5, § 17, Constitution of Indiana.

Based upon the information, the court issued its peremptory writ to respondent to show cause, if any there be, why execution of said judgment should not be ordered, as prayed in the information, notwithstanding the pardon by the Governor. Respondent having filed his brief on his demurrer, and the time having passed for a response on the merits, we assume that he is standing on his demurrer to the information. The issue therefore thus presented is the only and sole question of the power of the Governor, under the Constitution to pardon respondent, which issue is now before us for adjudication.

In support of the information, the state, by its first proposition of law, proposes that the Governor of Indiana has no power touching pardons simply by virtue of being chief executive, but that whatever power he has to pardon is derived from the Constitution and laws of the state. It is unnecessary to enter into a discussion here in support of this proposition. This court in 1857 considered the proposition and affirmed it. State v. Dunning (1857), 9 Ind. 20. By the authority of the case just cited, the proposition to the effect that the only power the Governor of Indiana has to grant pardons is that conferred on him by the Constitution as set forth in Art. 5, § 17 is confirmed.

It is proposed also by the state that the power to grant pardons, thus conferred on the Governor by the Constitution, is not an unlimited or absolute power. This is denied by the respondent.

The decisions by some appellate courts upon the question of the power of the chief executive to pardon, evolve from a consideration of the common law and its relation to the formation of a democratic and a republican form of government such as exists in the states of the United States. The government of England under the early common law was an absolute monarchy. The powers incident to sovereignty were independent or self-derived powers, and vested in the king absolute. The nationals under that regime were vassals, here limited in the sense that they had no spark of inherent sovereignty in them. The king was the sole executive and administrator of his empire. In him was seated the sole judicial power of the government, which was also autocratic. In him reposed the absolute control of the power of legislation, in that he had the absolute power of veto. He was absolute in every sense except the growth of the English Constitution. Starting with the power of the nationals in gaining the rights they did by Magna Charta to the present day, the English government is not in character like the government of the United States, or...