Wilborn v. Saunders

Decision Date10 March 1938
Citation195 S.E. 723
CourtVirginia Supreme Court
PartiesWILBORN. v. SAUNDERS, City Sergeant.

Error to Circuit Court of City of Richmond; Julien Gunn, Judge.

Habeas corpus proceeding by Moffett Dotson Wilborn against John C. Saunders, City Sergeant of the City of Richmond. From an order dismissing the petition, petitioner brings error.

Affirmed.

Argued before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, JJ.

Tuck & Mitchell, of South Boston, and Percy S. Smith, of Richmond, for plaintiff in error.

Abram P. Staples, Atty. Gen., and Ralph H. Ferrell, Jr., of Richmond, for defendant in error.

HUDGINS, Justice.

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 consecutively 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 other indictments, was sentenced by that court to serve three consecutive terms totaling three years in the penitentiary.

On December 20, 1930, Hon. John Garland Pollard, the then Governor of Virginia, granted Moffett D. Wilborn a conditional pardon, reading as follows:

"I, Jno. Garland Pollard, Governor of the Commonwealth of Virginia, have by virtue of authority vested in me, pardoned, and do hereby pardon the said Moffett Wilborn and do order that he be forthwith discharged from imprisonment, but upon the terms and conditions following, namely:

"That he will conduct himself in the future as a good, law-abiding citizen; upon the further condition that he is to report to E. C. Lacy, Clerk of the Court, Halifax, Va., immediately upon his release and thereafter each month as required by said Clerk or his successor in office, until November 25, 1933, and upon the further condition that the right to revoke this pardon at any time is expressly reserved to the Governor.

"And if he should violate any of the conditions or if ever again he be found guilty of a violation of the penal laws of the Commonwealth this pardon shall be null and void.

"Given under my hand and under the Lesser Seal of the Commonwealth at Richmond, this 20th day of December, in the year of our Lord one thousand, nine hundred and thirty and in the 155th year of the Commonwealth."

On February 13, 1937, the same Moffett D. Wilborn was convicted in the police court of the city of Richmond for violatingthe penal laws of the commonwealth. On appeal to the hustings court of the city, the judgment of the police court was affirmed and the accused was fined '$75, and sentenced to thirty days in jail. The Hon. George C. Peery, then Governor, on being advised of the conviction of Moffett D. Wilborn in the hustings court, revoked the pardon, and ordered the prisoner to be returned to the penitentiary to serve such parts of the sentence as had not been served on December 20, 1930, the date the conditional pardon was granted.

On April 21, 1937, while Moffett D. Wilborn was in the custody of John D. Saunders, sergeant of the city of Richmond, he filed, in the circuit court of the city, a petition for a writ of habeas corpus, alleging that the Governor had no power to revoke the pardon. After a full hearing, the circuit court refused to grant the writ, and dismissed the petition, thereupon the prisoner obtained this writ of error.

The dominant question presented is whether the Governor of Virginia has power to revoke a pardon for violation of conditions appearing on its face, after the expiration of the term for which the prisoner was sentenced.

Prior to 1872, there seems to have been some doubt whether the Governor was authorized to. grant conditional pardons at all. See section 7 and pertinent sections, Const. of 1776; article 4, § 4, Const, of 1830; article 5, § 5, Const, of 1850; Commonwealth v. Fowler, 4 Call 35, 8 Va. 35; Ball's Case, Ball v. Com., 8 Leigh 726, 35 Va. 726, dissenting opinion in Lee v. Murphy, 22 Grat. 789, 63 Va. 789, 12 Am. Rep. 563.

The majority opinion in Lee v. Murphy, supra, removed this doubt and held: "The power of granting conditional pardons must reside somewhere; and by common consent of all the States it is vested in the executive department. It has been well said that the authority to suspend the operation of laws, is a privilege of too high a nature to be committed to many hands, or to those of any inferior officer in the State. If the chief magistrate can be trusted with the power of absolute and unconditional pardon, he is certainly a safe depositary of the qualified power. Cases are constantly arising which call for the exercise of executive clemency in a modified form, by reason of circumstances subsequently occurring, or which could not have been taken into consideration by the courts and juries. Even the public good, which is the ultimate end of all punishment, sometimes requires that some milder form of punishment should be substituted for that which was enforced by the sentence of the law." See Edwards v. Commonwealth, 78 Va. 39, 49 Am.Rep. 377.

There has been no material change in the pardoning powers of the executive in the Constitutions adopted since 1872. See section 73 of the Constitution as amended in 1928.

Pursuant to constitutional provisions in most of the states, the executive is authorized to grant pardons and to annex thereto any condition subsequent, provided such conditions are not immoral, illegal, or impossible of performance. When a pardon with such conditions annexed is accepted, they become binding upon the prisoner.

The prisoner concedes the general rule to be as stated, but contends that the Governor has no power to revoke a pardon for breach of conditions after the expiration of the term for which the prisoner was originally sentenced.

A few cases in other jurisdictions support this contention. One of the reasons advanced therefor is that it is a judicial function to fix the punishment for violation of the criminal laws within the limits prescribed by the Legislature, and that while the exexcutive has power to relieve the prisoner from serving part or all of his term of confinement, the grant of a pardon, absolute or conditional, is an act of grace, a gift of all or part of the term, and only that part of the term that remains at the time of the breach of the condition is affected by revoking the gift. Hence, if the violation of the condition occurs after the full expiration of the original sentence, no part of the gift remains to be recalled. See Ex parte Prout, 12 Idaho 494, 86 P. 275, 5 L.R.A., N.S., 1064, 10 Ann.Cas. 199; Woodward v. Murdock, 124 Ind. 439, 24 N.E. 1047; People v. Cummings, 88 Mich. 249, 50 N.W. 310, 14 L.R.A. 285; State v. Hunter, 124 Iowa 569, 100 N.W. 510, 104 Am.St.Rep. 361.

The rule recognized and followed in the majority of jurisdictions is that 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, thepardon 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. State v. Horne, 52 Fla. 125, 42 So. 388, 391, 7 L.R.A., N.S., 719; Ex parte Kelly, 155 Cal. 39, 99 P. 368, 20 L.R.A., N.S., 337; Ex parte Davenport, 110 Tex.Cr.R. 326, 7 S.W.2d 589, 60 A.L.R. 1403, note 1410; State v. Yates, 183 N.C. 753, 111 S.E. 337; Crooks v. Sanders, 123 S.C. 28, 115 S.E. 760, 28 A.L.R. 940; 20 R. C.L. 555; 46 C.J. 1202; In re McKinney, 3 W.W.Harr., Del., 434, 138 A. 649.

"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...

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