In re Prout

AILSHIE, J. The petitioner was on the eighteenth day of May, 1903, sentenced to serve a term of three years in the state penitentiary for the crime of embezzlement, the judgment providing that the term of imprisonment should commence to run from the date of his delivery to the warden of the penitentiary. He was received at the penitentiary on the twenty-fourth day of May, 1903, and continued upon the service of his sentence until the sixth day of October, 1904, on which date he was released by the board of pardons on parole, under sections 13 and 14 of the act of February 2, 1899 (Sess. Laws 1899, pp. 11, 12). His parole carried with it various and sundry conditions and requirements as to his movements and conduct during his absence from the penitentiary. It required him to remain within the state and within the confines of certain counties therein designated; that he should make a written report to the warden on the first day of each and every month, stating his employment or occupation, the amount of his earnings, and an itemized account of his expenditures, and that such report should be certified by his employer or those for whom he had worked, and that he might be returned to the penitentiary at the will and upon the demand of the board of pardons, and concludes with the following language: “And upon his return he shall serve out the full unserved time of his original sentence, without any commutation of time. ’ ’ The prisoner was returned to the penitentiary on the second day of March, 1905, on the grounds that he had violated the provisions of his parole. — 497 — The board ordered his good time credit forfeited, and also the period of four months and twenty-six days that he was out on parole forfeited, and directed that he enter upon the original sentence and serve it in full as though he had never been released. The three year sentence would have expired on May 24,1906, without giving him any credit for good time; but under the direction of the board his sentence would not expire after his return to prison until the twentieth day of October, 1906. It is now nearly one month over three years since the prisoner was delivered to the warden of the penitentiary, and he applies for his discharge on habeas corpus, upon the ground that the term of his sentence has expired, and that neither the warden nor the board of pardons has any legal right to further detain him. It is contended by counsel for the state that under section 7 of article 4 of the constitution the board of pardons are granted full power and authority to do the acts and things complained of in this case. That section of the constitution provides, among other things, as follows: “The governor, Secretary of State, and attorney general shall constitute a board to be known as the board of pardons. Said board or a majority thereof shall have power to remit fines and forfeitures, and to grant commutations and pardons after conviction and judgment either absolutely or upon such conditions as they may impose in all cases of offenses against the state except treason or conviction on impeachment.” Act of February 2, 1899 (Sess. Laws 1899, pp. 11, 12), which prescribes the manner and method and conditions for paroling prisoners, provides, in section 13 thereof, “that such convict 'vhile on parole shall remain in the legal custody and under control of the board of pardons, and subject at any time to be taken within the inclosure of the said penitentiary, and full power to retake and reimprison any convict so upon parole is hereby conferred upon said board, whose written order certified by the warden shall be sufficient warrant for all prisoners named in it.” — 498 — It is urged by the attorney general that the board of pardons may impose any conditions whatever upon the granting of a parole. That proposition is correct, and. is the well settled and uniform rule of law as adopted both in this country and in England, and was, indeed, the rule of the common law. (4 Blackstone’s Commentaries, 401; Arthur v. Craig, 48 Iowa, 264, 30 Am. Rep. 395; United States v. Wilson, 7 Pet. 150. 8 L. ed. 640; Ex parte Wells, 18 How. 307, 15 L. ed. 421; State v. Smith, 1 Bail. (S. C.) 283, 19 Am. Dec. 679; Lee v. Murphy, 22 Gratt. 789, 12 Am. Rep. 563; Ex parte Marks, 64 Cal. 29, 49 Am. Rep. 684, 28 Pac. 109; Kennedy’s Case, 135 Mass. 48; State v. Wolfer, 53 Minn. 135, 39 Am. St. Rep. 582, 54 N. W. 1065, 19 L. R. A. 783; 24 Am. & Eng. Ency. of Law, 2d ed., 566.) This rule is subject to the same restrictions which attach to the official acts and conduct of all public officials, namely, that they must not be immoral or illegal. There can be no doubt but that under the constitution and statute as above cited the board of pardons may, upon the granting of a pardon, commutation or parole, attach such conditions as they see fit, so long as they are not immoral, illegal or impossible of performance, provided they are to be kept and performed or complied with during the term for which the prisoner was sentenced by the judgment of the court. Under our constitution it is the duty and prerogative of the legislative department to define crimes and fix the maximum and minimum penalty that may be imposed for the commission thereof. It is the duty of the judicial department to try offenders against those laws, and, upon conviction, to sentence them under the statute. Under the laws of this state, there is no such thing as an indefinite or indeterminate sentence as is provided for in many of the states from which authorities have been cited by the attorney general. In this state the sentence and judgment of the court must be specific, certain and definite. The board of pardons belongs to the executive department of the state, and its privilege and prerogative is that of granting clemency. It is a board of clemency rather than a punitive body. Instead of pronouncing judgment and sentence and — 499 — imposing punishment, its prerogative and authority is that of forgiving offenses and remitting penalties — wiping out judgments and sentences of conviction either in whole or in part. Whenever such board undertakes to increase or extend the penalty or punishment imposed upon a convict by a decree of court, they at once pass beyond the realm of their jurisdiction and authority, and infringe upon the judicial power of the state. It is urged, however, that this imprisonment does not amount to an increase or extension of the judgment of the court, for the reason that the prisoner was at large and enjoying his liberty during the four months and twenty-six days that he was out on parole, and that the sentence was during that time merely suspended. It seems to us that that contention is fully answered by section 13 of the statute above quoted, wherein it provides that the prisoner shall be under the control of the board of pardons, and shall report to the warden from time to time. It was also required, as we have heretofore seen, by the terms of the parole, that he should remain in a certain designated territory and constantly report his movements, employment, etc., to the warden. This contention is very fully and ably answered by the court in Woodward v. Murdock, 124 Ind. 439, 24 N. E. 1047, where the chief justice says: “During the time that he was out on parole he was not a free citizen; he was, as we have seen, still a prisoner, and notwithstanding his prison bounds were not so contracted as were the prison bounds of the insolvent debtor, at the time our laws recognized imprisonment for debt, still he was given prison bounds. He was not permitted to come into the state of Indiana. All the consequences of the judgment were upon him, except that he had leave of absence from the prison. As the appellant was a prisoner absent from the prison by proper authority, under no view of the case, in our opinion, could his imprisonment be continued longer than the period for which he was sentenced less his credit for good time. But if the appellant is to be regarded as having been a free man during the time he was out of prison on parole, he was entitled to his release at the time this pro — 500 — ceeding was instituted. It was only by virtue of the judgment of the Marion criminal court that the appellant was held as a prisoner; it by its very terms only condemned him for five years from its date, less any time for which, under the law, he might be entitled to credit.” (West’s Case, 111 Mass. 444.) Some of the cases cited by counsel for the state contain dicta to the effect that there is no limit to the conditions that may be imposed by the pardoning power upon paroling or pardoning a convict. But those statements are in most cases made in the consideration of questions other than the one presented in this case. In Fuller v. State, 122 Ala. 32, 82 Am. St. Rep. 17, 26 South. 146, 45 L. R. A. 502, it was held by the Alabama court that the’ statute of that state in express terms provided that in case the prisoner should be returned he should enter upon the service of his original sentence the same “as though no parole had been granted him. ’ ’ In re Conditional Discharge of Convicts, 73 Vt. 414, 51 Atl. 10, 56 L. R. A. 658, there is an extended discussion of this question and the citation of many authorities, but a careful examination of that case shows that the statute of Vermont provided for what the court of that state designates an “indeterminate” sentence. Upon conviction of the accused, the trial court seems to merely pronounce the maximum and minimum term of imprisonment, and after the prisoner has served the minimum term, it is left to the discretion of the pardoning power as to when he shall thereafter be discharged prior to serving out the maximum sentence. Conlon’s Case, 148 Mass. 168, 19 N. E. 164, is not in point here, for the reason that at the time that case was decided there was a statute in Massachusetts providing that in case of the return of a prisoner who had been paroled that “in computing the period of his confinement, the time between his release upon said permit and his return to the reformatory shall not be taken to be any part of the term of the sentence.” — 501 — In People v. Cummings, 88 Mich. 249, 50 N. W. 310, 14 L. R. A. 285, the court had under consideration a statute authorizing an indeterminate sentence where the eonrt could merely pronounce the maximum and minimum penalty, and the remainder was left to the determination of the pardoning power. The court held such an act unconstitutional as being an infringement upon the judicial power of the state. It certainly cannot be said that a man is a free man enjoying the liberty and freedom usually accorded other citizens when he is compelled to confine his movements to a specified locality and to report his conduct, his daily labor, his earnings and expenditures from time to time to a prison official, and is subject and liable at any day — and without notice, or the right of trial or the right to apply to the courts — to be taken to the state penitentiary and there imprisoned and confined at the will of designated officials. Such a view of the constitution and statute would amount to turning what the framers of the constitution intended to be a board of clemency into a board of punishment. It seems to us that in maintaining such a view we would lose sight of the purposes of the parole statute. That statute was never intended as a vindictive or punitive statute, but rather as a reformatory measure. It Avas intended that a prisoner who had served out one-third of his term and had made a good record as a prisoner might be put on his good behavior and word of honor, and that so long as he might keep his promise he could go free, and that Avhenever he violated the terms and conditions thereof he might be subject to return to serve out the remainder of the term for which he was sentenced. We find that some of the authorities have entered into many refinements and nice distinctions in the definition of pardon, commutation and parole. We think it clear, however, that whatever distinction may be drawn, and whatever definition may be given, that they are all acts of clemency, and are grants emanating from the executive department of the state without compensation or consideration from the recipient. It appears equally — 502 — clear to us that' a pardon, either absolute or conditional, is not effective until received and accepted. In so far as a clemency has once been received and enjoyed, it would seem impossible to recall or revoke it. The revocation could only extend to that part not yet enjoyed. Pardon or executive clemency is a gift. One who promises to make a gift may keep his promise in whole or part or he may decline entirely, but after the delivery he cannot recover the thing given, and even if he should again come into possession of it he cannot retain it. (1 Page on Contracts, sec. 281.) He may decline at any time he pleases to give any more, but that fact does not devest the donee of title to that which he has already received. In that view of the case, while the pardoning board would have unquestionable authority to recall their parole and return the prisoner at any time, it seems equally clear that they cannot wipe out or obliterate the clemency the prisoner has already received and enjoyed. It would seem strange if they can turn round and punish him the same length of time that he has been enjoying their clemency. The term for which the prisoner was sentenced having expired," the warden has no authority for his further detention. It is therefore ordered and adjudged that the prisoner be forthwith discharged. Stockslager, C. J., concurs.