Rathbun v. Baumel

Faville, J. The appellee was indicted by the grand jury of Ida County, on November 17, 1917, charged with the crime of rape. He was tried on said indictment, and on December 22, 1917, was convicted, and on December 31, 1917, duly sentenced to a term of imprisonment in the reformatory, at Anaimosa. On November 16, 1918, the then governor of the state, Hon. W. L. Harding, acting upon the written application of appellee for executive clemency, signed and delivered to appellee a pardon for said offense. A copy of said pardon was duly filed in the office of the clerk of the district court of Ida County, on December 7, 1918, and made of record in said office. Thereafter, on January 6, 1919, an action in equity was instituted in the district court of Ida County, for the cancellation of said pardon. Said action was brought in the name of [1235] the state of Iowa, and was instituted by the county attorney of Ida County. In said action, £he attorney-general of the state, without objection, appeared by petition of intervention. Said officer joined in all of the allegations and the prayer of the petition filed in the name of the State. By order of court, said intervention was allowed, and the attorney-general, in his official capacity, was made a party plaintiff. It was- alleged that said pardon had been procured from the governor by fraud practiced by the appellee herein upon the governor; that appellee, in procuring the same, had been guilty of a suppression of truth, a suggestion of falsehood, and misrepresentation of evidence. These matters were alleged specifically and in detail, setting forth wherein and by what means it was claimed that a fraud had been committed by appellee upon the governor in procuring said pardon. It is unnecessary to set out said averments. The appellee appeared in said action in person and by attorney, and filed answei, which, with certain admissions, was a general denial. On February 21, 1919, the appellee filed a petition in’ habeas corpus in the district court of Ida County. In said petition the appellee, as plaintiff, alleged that he was in custody under a mittimus that had been issued oh the judgment and sentence above referred to. Appellee alleged that said commitment was void, because of the pardon issued to appellee, and prayed that he be discharged from restraint under said writ. In' this action in habeas corpus, the sheriff of Ida County, who then held the appellee in custody under a mittimus issued on the judgment in the rape case, was made defendant. An answer was filed in said habeas corpus case, which, among other things, alleged that the pardon of appellee was invalid and void for fraud in its procurement, and that the application for a pardon was never referred to the board of parole, as the statute requires. The suit in equity to cancel the pardon and the suit in habeas corpus were heard together. At said time, the appellee was present in person and by attorney, and took part in the proceedings. It was stipulated of record, in open court, by all parties, that a decree should be entered in the equity case, adjudging the pardon to be void, and ordering it canceled. The [1236] court called the appellee before him, and appellee was interrogated by the court as follows: “Q. Do you understand that this proceeding cancels your pardon, or the pardon granted to you by the governor, and that the proceeding takes it away from you, and you get no rights under it? A. Yes, sir. Q. Is it satisfactory to you to have that done? A. Yes, sir.” After all this, a decree was duly entered in said equity proceedings, finding that said pardon had been obtained by fraud and deceit practiced by the appellee upon the governor, and decreeing that said pardon was void, and ordering that the copy of said pardon held by the appellee be surrendered and marked ‘1 canceled, ’ ’ and that the copy of the pardon on file in the office of the clerk be marked “canceled.” No exceptions were taken to this decree by appellee, and no appeal taken therefrom. The appellee thereupon surrendered the copy of the pardon held by him, to the clerk of the district court of Ida County, who marked the same “canceled,” and retained the same. The clerk also marked “canceled” the copy that had been filed in his office. In the habeas corpus case heard at the same time, the court, upon the issues joined, and after a hearing on the merits, adjudged that the pardon was absolutely void, and denied the writ prayed for. No review of this order was ever had or sought. Thereafter, the appellee was confined in the reformatory, at Anamosa, under commitment, until the petition for a writ of habeas corpus was filed in this cause. In said petition the appellee alleges his conviction and sentence in the district court of Ida County, as above set forth, and alleges that he was duly pardoned for said offense, on November 16, 1918, and that because thereof he is unlawfully deprived of his liberty under said commitment. The appellant, by way of answer, alleges all the matters and things that were done in connection with' said pardon, and the proceedings in equity and in habeas corpus, as hereinbefore set forth, and prays that the writ be denied. [1236] I. The first question for our determination is as to the effect of the decree in equity, canceling the pardon. It is earnestly contended that the court had no jurisdiction to. act in the [1237] equity suit to cancel the pardon, and that the decree entered was an unwarranted interference by one department of the state government with a co-ordinate department, and that the decree is void. This case does not present the question of interference by the judiciary with the voluntary and valid 'act of the executive. Not at all. It may be granted, for the sake of the argument, that, if the-governor acted fraudulently, or from improper motives, in granting the pardon, he is answerable therefor to the people, or subject to impeachment, and that the courts cannot question the motives for his acts, within the scope of his constitutional authoi-ity, eveix though he acted eorrxxptly. But no such question is pi-esented in this case. There is no claim, hint, or suggestion that the governor was guilty of any semblance of fraud, or that he in the slightest degree acted corruptly. The fraud charged was not by the governor at all. It was a fraud upon the governor. The written iixstrument, having been once executed and delivered, cannot be revoked by the governor after he discovers the fraud. All axxthorities so declare. That being true, are the courts impotent to protect their judgments from annulment by fraud perpetrated upon the doning power the judicial department with the constitutional prerogatives of a co-ordinate branch of the government. The court is not asked to investigate or pass upon the motives of the governor in grant- ing the pardon. No such question is in the case. It is the acts of the appellee, who is claiming a benefit under the written in- strument, that are the subject of the inquiry. Here we have a situation where a man duly convicted of crime seeks the annul- meixt of the judgment against him. He has possession of a written instrument which, if valid, annuls that judgment. It is contended that the instrument was procured by his own fraud, and is therefore invalid. A court of equity has the A power to investigate his title to such written instrument, and to inquire whether or not the same is valid. This is not an interference with the prerogatives of the executive. It is merely an inquiry into the rights of the party holding such instrument to claim anything thereunder. such instrument to claim anything thereunder. [1238] The governor may issue pardons, without let or hindrance on the part of the judiciary. No inquiry is made in regard to his acts. But the party seeking to benefit by the official act of the governor may certainly have his own acts investigated for fraud. Suggestion is made that the governor did not institute the proceedings in equity for cancellation of the pardon. This is merely begging the question. If a court of equity has no power to act in such a case, it would be as much without jurisdiction to annul the pardon at the instance of the governor as at the instance of the head of the department of justice. That being true, the question at this point is whether or not a court of equity can entertain a suit to vacate a pardon in aovy event. If it can do so, it certainly can act at the instance of the attorney-general, acting for the people of the commonwealth. It is a fundamental proposition that fraud in the procurement of any written instrument vitiates it in the hands of one seeking to benefit thereby. Likewise, it is one of the functions of a court of equity to set aside and hold for naught any written instrument that has its inception in fraud. Also, it is an established maxim that one cannot lawfully profit by his own wrong. One of the most important functions of a court of equity is to inquire into the validity of written instruments that are impeachable for fraud. A pardon must be evidenced by a written instrument. It is not sufficient, to vacate and supersede the judgment of a court, for the executive to orally say to the convict, “Go and sin no more.” A pardon is a deed, to the validity of which delivery and acceptance are essential. United States v. Wilson, 7 Pet. (U. S.) 150; Commonwealth v. Halloway, 44 Pa. St. 210; In re De Puy, 7 Fed. Cas. No. 3814; Carpenter v. Lord, 88 Ore. 128 (171 Pac. 577); De Leon v. Director of Prisons, 31 Philippine 60; Ex Parte Ray (Okla. Cr. App.), 193 Pac. 635. Can this written instrument — this deed — be subject to impeachment for fraud in its procurement ? The pardon issued in the instant case was a written instrument — a deed. By it, the solemn judgment of a court was, in effect, vacated and set aside. The party Obtained such written instrument by his own fraudulent act, both as to its execution and delivery. The people of the state have a direct and vital concern in [1239] this matter. The state, in its sovereign capacity, secured the conviction of this appellee, for a heinous and abhorrent crime. Can the state, in a court of equity, by a direct proceeding, contest the validity of the instrument which it is claimed renders nugatory the judgment which the state obtained? Blackstone, in his day, declared: “It is a general, rule that, whenever it may reasonably be presumed the king is deceived, the pardon is void. Therefore, any suppression of truth or suggestion of falsehood in a charter of pardon will vitiate the whole; for the king was misinformed. ’ ’ 4 Blackstone’s Commentaries (Lewis’s Ed.) * 400. Wharton, in his work on Criminal Procedure, Volume II (10th Ed.), Section 1469, says: “A pardon fraudulently procured will, it has been held, be treated by the courts as void. And this fraud may be by suppression of the truth, as well as by direct affirmation of falsehood. Yet this test should be cautiously applied by the courts, for there are few applications for pardon in which some suppression or falsification may not be detected. It is natural that it should be so, when we view the condition of persons languishing in prison, or under sentence of death; and if departure from rigid accuracy in appealing for pardon be a reason for canceling a pardon, there would be scarcely a single pardon that would stand. The proper course is to permit fraud to be set up to vacate a pardon only when it reaches the extent in which it would be admissible to vacate a judgment. And an erroneous recital is no proof of fraud.” In Dommick v. Bowdoin, 44 Ga. 357, the action was in habeas corpus. The defendant, as sheriff, relied upon a bench warrant to retain the petitioner. The latter replied by producing a pardon from the governor. The issue was raised that the pardon had been obtained by fraud. The court said: “When, by suggestion of fraud in its procurement, the question of its validity is put in issue, or where the identity of the person pardoned, or the fact of its acceptance or delivery, are brought before the court, in such case, if upon habeas corpus, it is the duty of the court to hear the testimony and pass upon the merits of the particular case, or, if pleaded upon the trial, then to hear evidence, and let the jury pass.upon the case under [1240] the proof. For, while we hold the constitutional power exists in the executive to grant pardons, we also hold that fraud in their procurement will render them void. * * * We need not multiply cases, as enough has. been quoted to show the fact that fraud will render the pardon void. We find no settled rule of practice or law laid down, nor do we intend to lay down more than the recognition of the general rule stated. As to what would or would not amount to fraud, or sufficient fraud to render it void, we deduce from the general rules of decisions that misrepresentation of the facts material in the case upon which the governor acted, and which ought to have prevented the clemency of the governor, if known, or any concealment of the material facts of the case, or suggestion of false views to the governor to procure the pardon, ought to be adjudged in the particular case by the court or jury, as the issue may be joined.” In State v. McIntire, 46 N. C. 1, the defendants were convicted and sentenced. On appeal, the case was reversed. In the interval, a pardon was obtained. After reversal, the pardon was interposed as a defense to further proceedings in the case. It was held that the pardon, obtained by misinformation to the' governor, was void, and could not be interposed to stay the processes of the court. The court said: “The fact that the law declares a pardon obtained under such circumstances to be void, is one among the many instances showing the truth of the maxim, ‘The common law is the perfection of reason.1 ’ ’ In Rosson v. State, 23 Tex. App. 287 ( 4 S. W. 897), the action arose on habeas corpus. Petitioner had been convicted and sentenced to imprisonment, and had been pardoned by the governor. He brought suit in habeas corpus. It was alleged that the pardon was obtained by fraud. The court said: “But it is further contended by the assistant . attorney - general that the pardon is invalid and void, because it was obtained by fraud, or granted by mistake, and that the record shows that such is the case. It is unquestionably true that a pardon procured by a fraud upon the pardoning power is void. Any suppression of truth or suggestion of falsehood in obtaining a pardon will vitiate it. * * * It being proved, and not con [1241] troverted, that the pardon had been issued on misinformation, it was prima facie procured by fraud, and was void. ’ ’ In State v. Leak, 5 Ind. 359, suit was brought on a recognizance. It was pleaded that the governor had remitted the penalty thereof, and issue was joined that this remittance was obtained by fraud. The court said: “It is well settled in the British courts that fraud vitiates a pardon or remission, and so it is in the American. But how this fraud must appear is, perhaps, not so clearly determined. It is insisted that it cannot be pleaded, and established by extrinsic evidence, — that is, evidence not furnished by the record of the suit in which the pardon or remission is granted. This point we shall not examine, in deciding the case before us. The authorities and textbooks all concur in this: that whenever it may reasonably be inferred from the contents of the pardon or remission itself, considered in connection with the record of the cause in which it was granted, that the executive was deceived or imposed upon by false statements, or. an omission to state relevant facts, on the part of those procuring the pardon or remission, the one or the other, as the case may be, is void. 4 Black. Comm. 400. Coke, in his 3d Inst., 238, says, ‘And that party which informeth not the king truly is not worthy of his grace and forgiveness, and therefore either su-ppressio veri or expressio falsi doth avoid the pardon. ’ ' ’ In Commonwealth v. Halloway, supra, the action' arose on habeas corpus. It was alleged that the pardon under which the petitioner claimed his right to release had been obtained by false and forged representations and papers presented to the pardoning power. The court said: “We think, also, that this pardon is void because of the false and forged representations and papers that were used in procuring it from the governor. * * * By the common law, all charters and patents may be avoided if based on any false suggestion, whether the suggestions be contained in them or not.. This question, however, can be raised only at the instance of the attorney-general, as the law officer'of the executive; for it would be quite indecent that any other person should raise it, unless under some carefully prepared statutory regulation. Such a question may be raised by a scire facias to repeal the charter; [1242] but it may also be raised on habeas corpus issued to allow the prisoner to plead his pardon; for the commonwealth is a party to that .proceeding, and the attorney-general may appear and answer the plea, by showing the false suggestions on which the pardon was obtained. * * * Any person may reclaim the rights out of which he has been cheated, until they come into the hands of a third person who is a bona-fide purchaser for value, without notice of the fraud. And so may the commonwealth. * * * He has no better title to this pardon than a consignee of goods would have, after the goods had been stopped in transitu, on the discovery that the sale and delivery had been procured by letters forged by the friends of the consignee.” In Territory v. Richardson, 9 Okla. 579 (60 Pac. 244), the court said:- “It has been held, concerning pardons, that they stand upon the same plane with the government’s patent for land, with its patent for an invention, or with its incorporation of a company, or with the record of a judgment; that, while fraud may vitiate them, and an action may be brought setting either the deed, patent, incorporation, or judgment aside for fraud, it will only be done in a direct proceeding for that purpose. ’ ’ One case, Knapp v. Thomas, 39 O. St. 377, 392, an action in habeas corpus, seems to deny to the courts the power to question in such a proceeding the validity of a pardon, even though obtained' by fraud. Bishop, in his work on Criminal Law (8th Ed.), Section 905, says: “A pardon obtained by a fraud on the pardoning power is void. In an Ohio habeas corpus case, this proposition was, by the majority of a divided court, denied, as applied to a pardon fully delivered and accepted, and on a proceeding not for its revocation. A pardon being an act specially in pais, the procuring of it being altogether ex parte, and there being no provision of law for its reversal, or for any hearing of persons whose interests may be pi*ejudiced by it, this Ohio doctrine is most unfortunate, and is contrary to the ordinary course of our jurisprudence in analogous things. ’ ’ In the instant case, the validity of the pardon has been tested by a direct proceeding in equity to set it aside on the [1243] ground of fraud. A court of equity has the inherent and undoubted power by direct proceedings to inquire into the validity of any written instrument under which rights are sought to be enforced. It is a basic and fundamental principle of our law that fraud in its procurement vitiates any written instrument in the hands of him who is guilty of the fraud. There is no good reason why the same rules do not apply to a written instrument obtained by fraud upon the governor as to one obtained by fraud upon a private citizen. The governor has power to issue patents to certain state lands. Code Section 76. Suppose •the patentee in such a written instrument obtains the same from the governor by fraud and false representations. Will it be said that a court of equity could not decree that patent to be void because of the fraud in procuring it, in a direct proceeding to declare it invalid? Nor does it make any difference whether the act was ministerial or discretionary. If the instrument was obtained by fraud upon the governor, it is invalid and void, and no rights can be enforced under it. The district court of Ida County, sitting in equity, had jurisdiction of the subject-matter and of the parties, and had full power in that direct proceeding to decree this written instrument to be invalid, because of the fraud perpetrated by this appellee upon the governor in procuring its execution and delivery ; and its decree is final. II. Furthermore, the decree of the district court of Ida County is binding in this case, even if it were erroneous. It was not void for want of jurisdiction. Courts of equity have power to inquire into the validity of all written instruments. That is exactly what the court was to <j0. The appellee submitted to the jurisdiction of the court. He joined issue; he went to trial. A decree was duly entered, from which no appeal was taken. A decree of court may be collaterally attacked, if absolutely void, but it may not be so attacked if merely voidable or erroneous. These propositions are fundamental. The district court of Linn County, or a judge thereof, cannot, in a habeas corpus proceeding, review collaterally the decree of the district court of Ida County, in a matter in which that court had jurisdiction of the subject-matter and the parties, and which decree, [1244] even if erroneous, is not void. On this ground alone the writ should have been denied. The decree of -the district court of Ida County in the equity case is a verity, and even if erroneous, cannot iioav be impeached in this proceeding. III. In any event, the appellee is in no position to iioav claim or assert any rights under this Avritten instrument. lie no longer has possession of it, and he has absolutely abandoned and surrendered any rights he may ever have had under it, assmning that he had such. He came before the court in Ida County and sur-~ rendered the pardon for the express purpose of having the same canceled and annulled. He stated at that time that the cancellation was satisfactory to him, and that he fully understood that he Avas surrendering the pardon for cancellation, and that he lost and surrendered all rights under it. HoAAr can he now reassert the validity of the instrument, upon this record? He surrendered the instrument in open court, for the purpose of having it canceled. It was marked “canceled” across its face at the time. Thereafter, it Avas prima 'facie a void instrument. On its face it appeared to be void. It Aras in the possession of a third party, the clei’k of the district court of Ida County. The appellee either surrendered it voluntarily or in pursuance of a valid decree of court, and in either eA^ent, his rights under it, if he ever had any, ceased and determined. The governor undoubtedly had the power' to issue to him a neAV pardon; but this instrument, by appellee’s oaaui act, freely and voluntarily done, has been canceled and annulled. A court cannot now breathe into it the breath of life. Appellee, in any event, has no rights noAV which he can assert under said instrument. Upon this ground alone, if for no other reason, the writ should have been refused. IV. Again, the appellee’s ease has been fully and finally adjudicated in the habeas corpus proceeding in Ida County. There was a valid judgment of conviction against the appellee. He was arrested and held in custody under a writ of commitment issued on said judgment. He applied for a writ of habeas corpus, setting up that he could not be held on a Avrit under said judgment [1245] because the judgment had been nullified by the pardon of the governor. The issue was squarely joined as to whether or not said pardon was valid and did supersede the judgment. The court had full jurisdiction to hear and determine that question in that proceeding. , The cases so hold. The appellee instituted that action. He invoked the jurisdiction of the court to relieve him from the effect of its own judgment against him. He prayed the court to stay the hand of its officer, to recall its own writ, to nullify its own judgment. Why? Solely because he presented before the court an alleged pardon from the governor. In such a proceeding, the court can inquire into the validity of the written instrument that is presented to annul its judgment and supersede its writ. With the issue tendered, as it was, the. court had the power to inquire into the validity of the instrument that would overturn its judgment. Appellee contends, in effect, that all the court could do would be to examine the document, ascertain if it bore the signature of the governor and the great seal of the state of Iowa, and then close its eyes to the claim and proof that it had been obtained by fraud upon the executive. To claim rights against a judgment by virtue of such an instrument, so obtained, is nothing more nor less than a fraud upon the court itself. A court can protect its own judgments by an inquiry into the question as to whether or not the instrument that vacates them is itself valid. When this appellee petitioned the district court of Ida County to vacate its judgment and set aside its writ and discharge the appellee because of the pardon which he pleaded, with the issue of fraud tendered, that court had the power to inquire into and determine the validity of the instrument before it. In any event, this was done. The writ of habeas corpus was denied for the identical reason now urged: namely, that the alleged pardon was invalid. No appeal was taken from that judgment. The identical question is now presented by another petition in habeas corpus before another judge. There is no change in the issue whatsoever. Courts have held that the writ of habeas corpus is “the darling of the English law,” and that a party may present his petition for this writ as many times and before as many judges as he may see fit. Eegardless of what may be the rule of the common law, our statute has expressly modified it in ’this [1246] respect. Our Code, Section 4101, Paragraph. 5, expressly provides for an appeal from “an order or judgment on habeas corpus.” The Code also provides, Section 4417, Paragraph 4, that the petition for habeas corpus must state “that the legality of the imprisonment has not already been adjudged upon a prior proceeding of the same character, to the best knowledge and belief of'the applicant.” This section is not meaningless. If the legality of the imprisonment has “already been adjudged upon a prior proceeding of the same character,” it is conclusive of the proceeding. A party cannot fail to take an appeal from an adverse decision in a habeas corpus case, as expressly provided by our statute, and, with a petition falsely reciting that the legality of his imprisonment has not been adjudged by a prior proceeding of the same character, become a mendicant, wandering from court to court and judge to judge, over the state, until, perchance, he may obtain a favorable decision. An order or judgment in a habeas corpus case, under our statute, is res adjudieata when the identical question, with no change of status, is again presented to the same or another tribunal. Such is and such should be the law. Appellee’s petition should have been dismissed on this ground. For the reasons-set forth, the order granting the writ of habeas corpus is — Reversed. Evans, Preston, and De Graee, JJ., concur.