Whittington v. Stevens, 39341

• Decision Date: 14 June 1954
• Docket Number: No. 39341,39341
• Citation: 221 Miss. 598,73 So.2d 137
• Parties: WHITTINGTON v. STEVENS, Sheriff.
• Court: Mississippi Supreme Court

Page 137

73 So.2d 137

221 Miss. 598

WHITTINGTON v. STEVENS, Sheriff.

No. 39341.

Supreme Court of Mississippi.

June 14, 1954.

Arrington & Arrington, Carroll Kemp, Hazlehurst, for appellant.

J. P. Coleman, Atty. Gen., Joe T. Patterson, Asst. Atty. Gen., for appellee.

GILLESPIE, Justice.

The Board of Supervisors of Copiah County entered an order in full accordance with the second sentence of Code Section 7907 releasing appellant from one-half of his term of imprisonment. The circuit judge entered an order without notice to appellant declaring void the order of the board of supervisors and directed the sheriff to hold appellant in jail for the fulfillment of the term of imprisonment. Appellant filed a petition for a writ of habeas corpus, which was denied by the chancellor. This appeal is from the order of the chancellor denying the writ.

Code Section 7907 is as follows: 'Deductions from sentence for efficient work or when crippled or incapacitated.--Any convict working under the direction of the board of supervisors who renders efficient services and complies with all necessary rules and regulations may have deducted from the term of his imprisonment one-fourth thereof. Any convict working under the direction of the board of supervisors who is so crippled or incapacitated because of illness that he cannot perform manual labor may have deducted from the term of his imprisonment one-half thereof when his inability to work has been certified to by the jail physician and duly spread upon the minutes of said board.'

The question is whether the second sentence of the above statute is unconstitutional as infringing upon the pardoning power vested in the governor.

Section 124 of the Constitution provides that in all criminal and penal cases, excepting those of treason and impeachment, the governor shall have the power to grant reprieves and pardons, to remit fines, etc. Section 225 of the Constitution provides that the legislature may provide for the commutation of the sentence of convicts for good behavior.

In the case of State v. Kirby, 96 Miss. 629, 51 So. 811, this Court held that Section 3, Chapter 109 of the Laws of 1908, was unconstitutional and violated Section 124 of the Constitution of the State. Section 3, Chapter 109 of the Laws of 1908, was as follows:

'If any convict when he otherwise ought to be put to work, should be unable to labor from bodily infirmity apparently permanent, the board of supervisors may discharge him from the jail after the expiration of thirty days from the date of sentence. But in no case shall a convict be discharged, unless there be produced to the board a certificate of the sheriff, a physician and another reputable person as to such infirmity, and the sheriff shall make the fine, costs and jail fees out of the property and effects of the convict, if he have any.'

The second sentence of Code Section 7907 is substantially the same as Section 3, Chapter 109 of the Laws of 1908. Subsequent to the decision in State v. Kirby, supra, our Court decided the case of State v. Jackson, 143 Miss. 745, 109 So. 724, and by an evenly divided Court, held that Chapter 155 of the Laws of 1924 was unconstitutional as being an infringement upon the pardoning power vested in the governor by Section 124 of the State Constitution. That statute denounced wife desertion or non-support and provided for a suspension of the fine and imprisonment upon the defendant entering into a bond conditioned that such defendant would provide for the support and maintenance of his wife or children for a period of two years.

In Gabriel v. Brame, 200 Miss. 767, 28 So.2d 581, this Court upheld the constitutionality of Sections 2541 and 2543 of the Code of 1942, commonly known as the suspension of sentence statutes. In the opinion in Gabriel v. Brame, State v. Kirby, supra, was discussed and distinguished. It was there said that State v. Kirby was a case where the Court had finally acted and jurisdiction of the matter no longer rested with the Court, and of State v. Jackson, supra, the Court said that it was not in accord with the controlling opinion but concurred in the reasoning of the dissenting opinion. We are of the opinion that the cases of State v. Jackson, supra, and Gabriel v. Brame, supra, did not have the effect of modifying State v. Kirby, supra, as they dealt with different types of statutes.

It is contended that the power to pardon vested by the Constitution in the governor is not infringed upon by the legislature providing for commutation of the sentence as provided by the second sentence of Code Section 7907. There is a distinction between a pardon and a commutation of sentence. A pardon is an act of grace proceeding from the power intrusted with the execution of the laws, in our State, the governor. A pardon relieves the person named from the legal consequences of a specific crime. 39 Am.Jur. 523. A commutation of sentence is the change of the punishment to which a person is sentenced to less severe punishment--a substitution of the lesser for a greater punishment. 39 Am.Jur. 524.

It is the general rule in most American jurisdiction that where such power is vested in the governor his powers in this respect may not be infringed upon. 39 Am.Jur. 529. This Court has so held in State v. Kirby, supra. The power is one inherently vested in the people, who, by constitutional provision, may vest it where they choose. By Section 124 of the Constitution, they have vested it in the governor with one exception. By Section 225 of the Constitution, the legislature may provide for the commutation of the sentence of convicts for good behavior.

'A power to grant pardon given to the executive by the Constitution in unrestricted terms includes authority to grant all kinds of pardons known to the common law, and also the power to grant reprieves, commutation of sentences, conditional pardons, and to remit fines and forfeitures.' 39 Am.Jur. 532.

'The power to commute a sentence is not judicial, but a sovereign power inherent in the state. Although there is authority to the contrary, it is generally held that the general power to pardon necessarily contains in it is the lesser power of remission and commutation, since, if the whole offense may be pardoned, a fortiori a part of the punishment may be remitted or the sentence commuted. In a number of jurisdictions the power to commute is expressly vested in the pardoning power.

'Exclusiveness of power. Where the power to commute sentences is expressly or impliedly vested in the governor or a board, that authority alone can grant a commutation; and no other person, official, or body can be empowered to grant a commutation. * * *' 67 C.J.S., Pardons, Sec. 15, page 584.

The second sentence of Code Section 7907 attempts to vest in the board of supervisors the power to commute one-half of the term of imprisonment of a prisoner who 'is so crippled or incapacitated because of illness that he cannot perform manual labor'. It is not a good behavior statute authorized by Section 225 of the Constitution. It cannot be said that it may be considered in connection with the first sentence based on good behavior. The part of the statute here relied upon by appellant is based solely on the physical condition of the prisoner.

We hold that under the Constitution the governor is vested with the exclusive power to pardon with the sole exception that the legislature may provide for the commutation of the sentence of convicts for good behavior; that the power to pardon includes the power to commute sentences in criminal cases. This power may not be infringed upon by legislative enactment. We reaffirm what was held in State v. Kirby, supra.

The part of the statute relied upon by appellant, the second sentence of Code Section 7907, is therefore held to be unconstitutional as an infringement upon the pardoning power vested in the governor. We recognize that the legislature was prompted by the highest humanitarian motives in enacting the second sentence of Code Section 7907. There is a presumption in favor of the constitutionality of legislative acts. However, the act in question must be measured only by the yardstick of the Constitution for the purpose of determining where lies the power.

Affirmed.

McGEHEE, C. J., and LEE, KYLE and HOLMES, JJ., concur.

ARRINGTON, J., took no part.

ETHRIDGE, Justice (dissenting).

It seems to me that in striking down the second sentence of Code of 1942, Section 7907, the Court is placing an unwarranted restriction upon the power of the Legislature to control the management, supervision and discharge of prisoners. This statute simply provides that the board of supervisors may deduct one-half of the sentence of a prisoner in the county jail, if he is 'so crippled or incapacitated because of illness that he cannot perform manual labor * * *.' The board cannot do this until it has the certificate of the jail physician, which must be placed upon the minutes along with the order. There are eighty-two counties in the State, and prisoners convicted of misdemeanors with jail sentences usually of six months or less are kept in county jails in practically all of those counties. If a prisoner becomes so ill that he cannot work, or he is otherwise physically incapacitated, the majority decision denies to the Legislature, and boards of supervisors, the humane power to commute part of the sentences of such convicts.

On the other hand, it is undisputed, and the majority opinion recognizes that under Constitution Section 225 the Legislature can commute sentences of convicts in county jails as well as the state penitentiary for 'good behavior.' In other words, if the Legislature had simply added the requirement of good behavior to the second sentence of Section 7907, it would have been entirely valid. This would seem to be a technical difference without any realistic basis.

Article IV of the 1890 Constitution creates the 'Legislative Department.' Section...