State ex rel. Melerine v. Trist

FOURNET, Chief Justice. On application of Celestine Melerine showing that he was arrested and incarcerated in the St. Bernard Parish jail on November 9, 1959, on an ex parte order of the district judge in execution of the sentences in cases Nos. 4632 and 4634 on the docket of the Twenty-fifth Judicial District Court, although there was, at the time, a valid and outstanding reprieve of the Governor granting him a respite from these sentences, and that before relief could be sought in the district court and brought here for review the matter might be considered moot, as we held in the case of his co-defendant, James Licciardi,1 we, on November 11, 1959, in exercise of our original jurisdiction,2 issued an alternative writ of habeas corpus to the Honorable Nicholas P. Trist, Sheriff of the Parish of St. Bernard, directing him to show cause why the relator should not be protected by the reprieve of the Governor and, in the meanwhile, ordered relator’s release on bond of $2,500. In order that the facts and issues presented thereunder for our determination may be properly understood, it becomes important that the proceedings in this and related matters be set forth in some detail. These show that when the convictions and sentences of relator and James Licciardi on two bills of information (bearing Nos. 4632 and 4634 on the docket of the Twenty-fifth Judicial District Court) charging them with malfeasance in office became final March 23, 1959, following our affirmation thereof,3 the Governor, on the same day, granted them a 90-day reprieve without mentioning the cases by number and referring only to the charges of malfeasance on two counts, such reprieve to be effective from the day on which the accused were “scheduled to begin their terms of imprisonment.” By order of the Governor bearing date March 11, 1959,4 this was extended for an additional 60 days from the day on which the 90-day reprieve expired. The district attorney, nevertheless, on June 29, 1959, — obviously becoming apprised of the failure of these documents to mention the cases by number, and construing them to thus refer to case No. 4634 only (which contained two counts) — secured from the trial judge an order for the immediate arrest and incarceration of Licciardi and Melerine under the sentences in case No. 4632. While Mel-erine was not arrested and placed in jail under this order, his co-defendant was. The next day (June 30, 1959), the Governor granted another 90-day reprieve in which both cases are specifically numbered and designated, to become effective upon the day the accused were “scheduled to begin their terms of imprisonment.” When the trial judge refused to release Licciardi on his application for a writ of habeas corpus — being of the opinion the reprieve of March 23, 1959, and its extension did not cover case No. 4632 and the reprieve of June 30 was ineffective since Licciardi had begun to serve his sentence when it was issued — we, on July 3, 1959, granted the writs forming the basis of the proceedings in No. 44,743 on our docket that were recalled November 9, 1959,5 because we considered the matter moot since the 90-day period of the June 30 reprieve expired on or before October 6, 1959, when it was submitted for our consideration.6 [693] Thus, as pointed out in the Licciardi decision, the first two reprieves being considered initially as affecting both cases, no attempt was made to execute the sentences under either until June 29, 1959. And although Melerine was not then arrested, the reprieve of June 30 was respected and he was not disturbed until November 9, 1959, when we handed down our decision recalling the writs in the Licciardi matter. On that day, however, although this decision was not final, and despite the fact the June 30 reprieve was extended on September 16 for an additional 90 days, the trial judge, on motion of the district attorney, ordered the arrest of both Melerine and Licciardi,7 and, under this warrant, Melerine was arrested the same day and incarcerated. To secure his release he applied to us direct and, on November 11, 1959, we granted the writ forming the basis of the instant proceeding. The next day the Governor issued a fifth reprieve, the period thereof extending for still another 90 days from the date on which the September 16 reprieve expired. It is the contention of the district attorney, as counsel for the respondent sheriff, that the reprieve of June 30, by its very terms running for 90 days “from the day they (Licciardi and Melerine) were scheduled to begin their imprisonment,” expired June 21, since their sentences became execu-tory March 23, 1959, with our refusal of rehearings in their appeals; and the extension thereof for an additional 90 days on September 16 expired September 29; consequently, the sheriff, in arresting Melerine on November 9, did so not only in compliance with the order of the judge, but also in accordance with his express duty under RS 15 :565.8 As to the reprieve of November 12, 1959, it is contended that inasmuch as the Governor is without right to reprieve once the convicted person has begun to serve his sentence, it was without effect. (The emphasis and wording within brackets has been supplied.) Counsel’s contentions are untenable. The basis of the first is, to say the least, ingenious, presupposing, as it does, that the Governor would resort to the useless and vain procedure of issuing a reprieve on June 30 to cover a 90-day period that had already expired on June 21. While it is true the sentences in these cases became ex-ecutory March 23, 1959, the accused were not “scheduled” to begin their terms of imprisonment thereunder, as held in the Lic-ciardi matter, until June 29, 1959, when, on motion of the district attorney, the trial judge issued a mittimus warrant ordering the sheriff to arrest them for commitment to the parish jail, for, until that time, both the district attorney and the sheriff, considering them fully protected by the gubernatorial respite granted on March 23, made no attempt to execute the judgments by having the accused begin serving their sentences. It is obvious by simple calculation that Melerine was thus protected by the 90-day reprieve of June 30 as extended for an additional 90 days on September 16 when he was arrested on November 9, 1959, and that his incarceration on that day was premature and illegal. But were we to accept as sound counsel’s argument that Melerine was legally arrested on November 9, when the Governor, by his order of November 12, granted him a still further respite of 90 days, the time to serve the portion of his sentence then remaining was delayed accordingly. Counsel cites no law to support his contention that a reprieve is ineffective [694] after the accused has begun to serve his sentence.9 To the contrary, we have the express provisions of Section 10 of Article V of the Louisiana Constitution of 192110 giving the Governor plenary power to grant reprieves. This power is without limitation and absolute, except in cases of treason. See, State ex rel. Daniel v. Rose, 29 La.Ann. 755, and State v. Melerine, bearing No. 44,743, 238 La. 847, 116 So.2d 689. The argument of the district attorney that inasmuch as the Governor has been given no such power, his reprieves cannot have the effect of remitting the fines imposed in these cases, thus making executory the alternative jail sentences of 60 days since the fines levied have not been paid, is equally without merit, for the Governor, by issuing the reprieves, has not thereby remitted the fines. He has only delayed or postponed their payment during the periods of the respites. See, State ex rel. Daniel v. Rose, supra. For the reasons assigned, the alternative writ of habeas corpus issued herein is made peremptory and the Honorable Nicholas P. Trist, Sheriff of the Parish of St. Bernard, is ordered to honor the respites of the Governor and to delay execution of the sentences in cases Nos. 4632 and 4634 on the docket of the Twenty-fifth Judicial District Court accordingly. Footnotes [1] State v. Melerine, No. 44,743, November 9, 1959, 238 La. 847, 116 So.2d 689. [2] “The Supreme Court * * * and each of the judges thereof * * * may issue writs of habeas corpus, in behalf of any person in actual custody * Section 2 of Article YU of the Constitution of 1921. [3] State v. Melerine, 236 La. 881, 109 So.2d 454; and State v. Melerine, 236 La. 929, 109 So.2d 471. [4] The date on this reprieve is obviously an error. [5] See Footnote No. 1 supra. [6] It was not called to our attention when the case was submitted, or at any time prior to judgment, that the June 30 reprieve had boon extended for an additional 90 days by the Governor on September 16. [7] On November 16, 1959, the judge revoked this warrant as having been improvidently granted when, in a rule for contempt, his attention was called to the fact that our decision of November 9, 1959, was not final. See, No. 44,932 on our docket. [8] “The sheriff, as soon as any sentence to imprisonment * * * shall have become final, shall, unless the governor shall have reprieved the person convicted, proceed forthwith to the execution of said sentences.” [9] We find an opinion of the then Attorney General of Louisiana (the Honorable Eugene Stanley), rendered May 12, 1940, that is contrary to our holding here. See, page 2808 of the 1940-42 Opinions of the Attorney General. But there are also three opinions emanating from this same office that accord with our holding, the first by the Honorable George M. Wallace, first assistant to the Attorney General, dated August 9, 1932, appearing at page 645 of the 1932-34 Opinions of the Attorney General; the second by the Honorable Lessley P. Gardiner, second assistant to the Attorney General, dated November 29, 1938, appearing at page 1016 of the 1938-40 Opinions of the Attorney General; and the third by the Honorable Carroll Buck for the Attorney General dated April 10, 1953, appearing at Page 187 of the 1952-54 Opinions of the Attorney General.” [10] “The Governor shall have power to-grant reprieves for all offenses against the State * * *. In case of treason he may grant reprieves until the end of the next session of the Legislature-