Wilborn v. Saunders

• Decision Date: 10 March 1938
• Parties: MOFFETT DOTSON WILBORN v. JOHN G. SAUNDERS, CITY SERGEANT, ETC.
• Court: Virginia Supreme Court

Page 153

170 Va. 153

MOFFETT DOTSON WILBORN v. JOHN G. SAUNDERS, CITY SERGEANT, ETC.

Supreme Court of Virginia, Richmond.

March 10, 1938.

Present, All the Justices.

1. PARDON — Conditional Pardon — Power of Governor to Annex Conditions. — Pursuant to constitutional provisions the executive is authorized to grant pardons and to annex thereto any condition subsequent, provided such condition is not immoral, illegal or impossible of performance.

2. PARDON — Conditional Pardon — Effect of Violation of Conditions. — A person is bound by the conditions attached to a pardon. When he has accepted it, and has been released from prison by virtue of such pardon, and subsequently violates or fails to perform any of the conditions, the pardon becomes void, and he is subject to re-arrest, and to undergo the punishment imposed by the original sentence, or so much thereof as he has not served at the time of his release.

3. SENTENCE AND PUNISHMENT — Time of Execution Not an Essential Element of Sentence. — The law does not contemplate that the court in fixing the punishment shall also fix the beginning and ending of the period during which the imprisonment shall be suffered. The time fixed for executing a sentence, or for the commencement of its execution, is not one of its essential elements, and, strictly speaking, is not a part of the sentence at all. The essential portion of the sentence is the punishment, including the kind of punishment and the amount thereof, without reference to the time when it shall be inflicted. The sentence, with reference to the kind of punishment and the amount thereof, should, as a rule, be strictly executed, but the order of the court with reference to the time when the sentence shall be executed is not so material. Expiration of time without imprisonment is in no sense an execution of the sentence.

4. SENTENCE AND PUNISHMENT — Purpose of Penal Laws and of Punishment for Violations. — Penal laws are adopted and enforced for the preservation of peace and good order of the Commonwealth. A violator is made to suffer for his wrong to society and to serve as an example to deter others who may desire to do likewise.

5. SENTENCE AND PUNISHMENT — Fixing of Punishment within Statutory Limits a Judicial Function. — It is a judicial function to fix the amount of punishment within the limits prescribed by the legislature.

6. SENTENCE AND PUNISHMENT — Reformation of the Criminal a Consideration. — The Commonwealth is interested not only in the preservation of peace and good order, but in reformation of the criminal, so that he may be restored to a useful place in society and be self-sustaining thereafter.

7. SENTENCE AND PUNISHMENT — Suspension of Sentence and Parole — Purpose of Sections 1922b and 4486 of the Code of 1936. — Sections 1922b and 4486 of the Code of 1936, authorizing trial judges, in some cases, to place a convicted person on probation or parole for a fixed period, upon certain conditions, were enacted to the end that the criminal might be reformed, so that he might be restored to a useful place in society and be self-sustaining thereafter.

8. SENTENCE AND PUNISHMENT — Suspension of Sentence and Parole — Validity of Section 1922b and 4486 of the Code of 1936. — The provisions of sections 1922b and 4486 of the Code of 1936, authorizing trial judges, in some cases, to place the convicted person on probation or parole for a fixed period, upon certain conditions, are not an infringement upon the pardoning power imposed upon the executive by the Constitution.

9. PARDON — Effect — Determined by English and Federal Rules. — Certain restrictions are in Virginia imposed upon the exercise of the pardoning power which are not found in the laws of England or of the United States, but subject to these restrictions, the effect of the Governor's pardon must be determined by the same rules which apply to a pardon by the British crown or by the President of the United States.

10. PARDON — Conditional Pardon — Condition of Future Non-Violation of Penal Laws — Case at Bar. — The instant case was a habeas corpus proceeding instituted upon the revocation of a pardon which was granted to petitioner by the Governor on the condition that should petitioner ever again be found guilty of a violation of the penal laws of the Commonwealth, the pardon should be null and void.

Held: That the power of the Governor as applied to the conditional pardon was not restricted by any constitutional or statutory provision, and the condition that the prisoner should not again be convicted of the penal laws of the Commonwealth was not illegal, immoral, or impossible to be performed.

11. PARDON — Theory upon Which Pardon Is Granted. — A pardon is granted on the theory that the convict has seen the error of his ways, that society will gain nothing by his further confinement, and that he will conduct himself in the future as an upright, law-abiding citizen.

12. SENTENCE AND PUNISHMENT — Suspension of Sentence and Parole — Credit Not Given for Time of Large. — The policy of the State, as expressed in the probation or parole statutes, denies to the paroled prisoner credit for the time that he is at large on parole.

13. PARDON — Conditional Pardon — Revocation for Breach — Monthly Reports to Court Officer Not Part of Execution of Sentence — Case at Bar. — In the instant case a prisoner was granted a pardon on condition that he report to the clerk of the court, wherein he was convicted, immediately upon his release and each month thereafter until the expiration of the term for which he was sentenced, and that should he ever again be found guilty of a violation of the penal laws of the Commonwealth the pardon should become null and void. Subsequent to the expiration of the term for which he was sentenced, the prisoner was convicted of a violation of the penal laws, his pardon was revoked by the Governor and he was ordered to be returned to the penitentiary to serve such part of the sentence as had not been served on the date the conditional pardon was granted. The prisoner contended that during the period in which he was ordered to report to the clerk of the court he was still in custody and should be given credit therefor.

Held: That reporting to the clerk was simply complying with one of the conditions imposed, and in no sense should this period be treated as a part of the execution of the sentence imposed by the court.

14. SENTENCE AND PUNISHMENT — Concurrent or Consecutive Terms of Confinement — Section 4786 of the Code of 1919 — Case at Bar. — In the instant case plaintiff in error was found guilty on three indictments and sentenced by the court of one county to serve a term in the penitentiary on each indictment. The periods of confinement totaled five years, and were ordered to run consecutively and not concurrently. Subsequently plaintiff in error, who had previously been convicted in the court of another county on three indictments, was sentenced by that court to serve three consecutive terms totalling three years in the penitentiary. Plaintiff in error contended that inasmuch as the judgment of the second court did not state whether the terms of confinement should run consecutively or concurrently with the terms of confinement as fixed by the first court, such terms ran concurrently therewith.

Held: That this contention ignored the provisions of section 4786 of the Code of 1919, that when any person was convicted of two or more offenses, before sentence was pronounced for either, the confinement to which he might be sentenced upon the second, or any subsequent conviction, should commence at the termination of the previous term or terms of confinement. Under this statute the total period of confinement on the six indictments was eight years.

15. PARDON — Conditional Pardon — Revocation for Breach — Credits to Which Prisoner Entitled — Case at Bar. — In the instant case a prisoner was pardoned by the Governor on condition that if he again violated any penal law of the Commonwealth the pardon would be void. Subsequent to his release and to the expiration of the original period of his confinement the prisoner was convicted of violating another penal law of the Commonwealth, his pardon was revoked and he was ordered to be returned to the penitentiary to serve such part of the sentence as had not been served on the date the conditional pardon was granted.

Held: That the prisoner was entitled to credit, as provided by law, for the time spent in jail awaiting the final determination of the cases pending against him, and to credits as provided by section 5017 of the Code of 1936, for faithfully observing the rules and regulations of the prison, during the time he was subject to such rules and regulations. In other words, on the revocation of his pardon, he was to be remanded to the penitentiary as if no pardon had ever been granted.

16. PARDON — Conditional Pardon — Power of Governor to Revoke after Expiration of Term of Imprisonment. — The Governor of Virginia has power to revoke a pardon for breach of conditions after the expiration of a term for which the prisoner was originally sentenced.

Error to a judgment of the Circuit Court of the city of Richmond, refusing to grant a writ of habeas corpus. Hon. Julien Gunn, judge presiding.

The opinion states the case.

Tuck & Mitchell and Percy S. Smith, for the plaintiff in error.

Abram P. Staples, Attorney-General and Ralph H. Ferrell, Jr., Special Assistant, for the defendant in error.

HUDGINS, J., delivered the opinion of the court.

On February 22, 1929, Moffett D. Wilborn was found guilty on three indictments and sentenced by the Circuit Court of Mecklenburg county to serve a term in the penitentiary on each indictment. The periods of confinement totaled five years, and were ordered to run consequentively and not concurrently.

On March 11, 1929, the same Moffett D. Wilborn, who had previously been convicted in the Circuit Court of Brunswick county on three...