Opinion
12744
October 12, 1929.
Before TOWNSEND, J., Richland, August, 1928. Reversed, and the prisoner discharged.
Habeas corpus proceeding by Sallie Bess against Jas. N. Pearman, superintendent of the penitentiary, for an order discharging Ben Bess from the custody of the respondent. From the decree, Ben Bess appeals.
The petition, the return, the master's report, the order of the lower Court, and appellant's exceptions follow:
PETITION FOR WRIT OF HABEAS CORPUSTo Hon. W.H. Townsend, Judge of the Fifth Judicial Circuit:
The petition of Sallie Bess respectfully shows the Court:
I. That she is a resident and citizen of South Carolina and the wife of Ben Bess, who is now imprisoned or restrained in his liberty by Hon. James N. Pearman, superintendent of the South Carolina penitentiary, being confined in the said penitentiary, Columbia, South Carolina.
II. That the said Ben Bess is not committed or detained by virtue of any process issued by any Court of the United States, or any Judge thereof, in any case where such Courts or Judges have exclusive jurisdiction by the commencement of suits in such Courts; nor by virtue of the final judgment or decree of any competent tribunal of civil or criminal jurisdiction, nor by virtue of any execution issued upon such judgment or decree.
III. And your petitioner avers that Ben Bess is utterly ignorant of the cause or pretense of such confinement or restraint, and believes it is without legal cause or warrant.
IV. And your petitioner further states that she is advised and verily believes that the imprisonment of Ben Bess is illegal, and that such illegality consists in his imprisonment without due process of law, and in the manner and method thereby prescribed.
V. And your petitioner further states that she is forced to make this petition for the reason that the said Ben Bess is held in said penitentiary without the privilege of seeing any one, being even denied his legal right of consulting with counsel, although he has sought such counsel, and desires his liberty and freedom.
Wherefore, your petitioner prays that a writ of habeas corpus do issue to bring the said Ben Bess before your Honor that the cause of his imprisonment or restraint of liberty be inquired into, and such further proceedings may be had thereon as are agreeable to law and justice.
RETURN TO WRIT OF HABEAS CORPUSTo the Honorable W.H. Townsend, Judge of the Fifth Judicial Circuit:
James N. Pearman, superintendent of the South Carolina penitentiary, by way of return to the writ of habeas corpus dated July 14, 1928, and by way of answer to the petition of Sallie Bess, respectfully shows to the Court:
I. That he admits the allegations contained in the first paragraph of said petition, but denies each and every other material allegation in said petition.
II. That said Ben Bess was duly committed to the State penitentiary from Florence County under sentence of thirty years, a copy of said commitment being hereto attached as Exhibit A and made a part of this return, the said sentence not having expired and the same is now in full force and effect.
III. That on the 4th day of May, 1928, John G. Richards, Governor of South Carolina, granted to the said Ben Bess a suspension of sentence during good behavior, and on said suspension of sentence said Ben Bess was released from the State penitentiary; and on information and belief this respondent alleges that on the 12th day of May, 1928, the said Governor of South Carolina issued what purported to be a full pardon; and on June 21st, 1928, this respondent received a verbal order from the Governor to receive and confine Ben Bess in the State penitentiary for safe-keeping, the said verbal order being confirmed by written order dated July 16, 1928, a copy of which is hereto attached as a part of this return.
IV. That this respondent is informed and believes and on information and belief alleges that the said suspended sentence and the purported pardon were each and both obtained from the Governor by reason of misinformation and fraudulent statements presented to him, on which he relied, and that without such misinformation and fraudulent statements, the said Governor would not have signed either the suspension of sentence or the purported pardon, and that by reason of said misinformation and fraudulent statements, the said suspension of sentence and purported pardon were void from the beginning, never have taken effect, and are and have been invalid and ineffective in authorizing the release of the said Ben Bess from the State penitentiary; that since the signing of the said suspension of sentence and purported pardon, the Governor has withdrawn, canceled and annulled said papers on the grounds of fraud, a copy of said cancellation is hereto attached as a part of this return so that, the original sentence imposed by the Court on Ben Bess on June 7, 1915, in Florence County is in full force and effect and the said Ben Bess is duly and legally held in the State penitentiary pursuant to and by virtue of a valid and effective judgment and sentence of the Court of competent jurisdiction in the State of South Carolina.
Wherefore, this respondent prays that the writ be dismissed with cost.
MASTER'S REPORT1. I, the undersigned master, have to report: Pursuant to an order of Hon. W.H. Townsend, Judge Fifth Circuit, dated July 19, 1928, referring the above-entitled cause "to the master for Richland County to take and report the testimony with his findings thereon, and that the master for Richland County hold a reference with all convenient speed and take the testimony of any and all witnesses offered by the State or the petitioner to establish or refute the charge of fraud and misrepresentation and to report his finding of facts thereon," I held a reference herein on the 2d day of August, 1928, attended by the attorneys of record, took the testimony offered, which is herewith reported, and that thereafter, on the 8th day of August, 1928, I heard arguments of counsel on the facts presented by the testimony taken, and therefrom find as hereinafter set forth.
2. That one Ben Bess, after having been tried by a legally drawn jury and found guilty, that sentence, dated June 7, 1915, was passed by the presiding Judge as follows: "It is hereby ordered and it is the sentence of the Court that the said Ben Bess be imprisoned at hard labor in the State penitentiary for a period of thirty years hereafter."
3. That a petition for the pardon of Ben Bess, without date, together with affidavit thereto attached dated April 10, 1928, was filed in the office of the Governor of the State of South Carolina some time prior to the 4th day of May, 1928.
4. That by virtue of facts set forth in said petition, together with the affidavit which was offered in evidence and marked Exhibit D, the Governor did, on the 4th day of May, 1928, grant a suspension of sentence to the said Ben Bess during good behavior, and that thereafter, on the 12th day of May, 1928, issued a full pardon to the said Ben Bess, which said pardon, under the hand and seal of the Governor, attested by the Secretary of State, was offered in evidence as Exhibit A.
5. That after granting said pardon and Ben Bess was exercising his rights of freedom thereunder, the attention of the Attorney General and Solicitor was directed to the propriety of having the affiant, who, under the affidavit upon which the pardon was granted, presented before the grand jury in the County of Florence, looking to the issuance of an indictment for perjury, and that upon such facts reaching the affiant through articles published in the papers, the affiant then denied that she had ever signed any paper with the intention of repudiating her previous testimony at the trial, and declared that she had signed a paper only "forgiving him, just only forgiving him."
6. That upon such denial and repudiating of said affidavit, the Governor caused Ben Bess, through his constables, to be placed in the State penitentiary for safe-keeping, declaring that "he was taken under by direction of his own free will and placed back in the penitentiary."
7. That on the 12th day of July, 1928, a petition for writ of habeas corpus was presented in the Court of Common Pleas and upon hearing the same, the Judge of the Fifth Judicial Circuit directed a hearing before him at the Court House on the 19th day of July, 1928.
8. That on the 17th day of July, 1928, the Governor issued his proclamation canceling the suspension of sentence, and also the pardon theretofore granted, stating his reason "that the same were issued on misinformation and obtained by fraud," and thereupon indorsed on the record in the office of the Secretary of State the following: "The within suspension of sentence is hereby withdrawn, canceled, and annulled and void for the reason that I am convinced that it was issued on misinformation and obtained by fraud," and upon the pardon indorsed the following: "The within pardon is hereby withdrawn, canceled, annulled and void for the reason that I am convinced that it was issued on misinformation and obtained by fraud."
9. That return was made before Hon. W.H. Townsend by the Attorney General, and that, upon such return being made and heard, the presiding Judge referred said cause to the master as hereinabove set forth by the order dated 19th day of July, 1928.
10. I find, as matter of fact, under the terms of the order referring said cause to the master, that no fraud whatsoever was perpetrated against the affiant in obtaining the affidavit, which, among other things, repudiated the testimony given by her at the original trial upon which conviction was had, and that said affidavit was read over to the affiant before the same was signed, and that she, together with her son, had plenty of opportunity to acquaint themselves of the true facts set forth therein.
11. I further find that affiant knew and did intend that said affidavit was to be used for the purpose of getting Ben Bess a pardon, but I further find that after developments show, on account of her limited education and intelligence, that she did not understand the full purport of the affidavit which she did sign and that her interpretation, that it was only given with the intention of forgiving the accused, was different and at great variance from the interpretation placed upon the same by the Governor, which moved him to the action in granting suspension of sentence and pardon.
12. I further find that said affidavit was obtained and was signed of her own free will and accord, without coercion on the part of any one connected with the obtaining of the same, and that her afterwards explanation and limitations of the same that was given only to forgive the accused, was made after intelligence was brought to her attention that probably she would be prosecuted for perjury, and that there was greater cause for her repudiating the same from a personal standpoint and interest than there was in the first instance for signing the same.
Having fully reported the facts, together with the testimony taken at the reference, I submit the same as full compliance under the terms of the order referring the same to the master.
ORDER IN HABEAS CORPUS PROCEEDINGSThis matter is now heard by me upon the testimony taken and reported by the master, together with the findings thereon, and exceptions thereto.
The question of fact is: Was the affidavit signed by the prosecutrix, in which it is stated that she testified falsely on the trial of the petitioner, Ben Bess, obtained by fraud and used fraudulently to procure the pardon from the Governor, on which the petition bases his claim to a discharge?
Ordinarily, as the granting of a pardon is not governed by any rules of law, and rests entirely in the discretion of the Governor, the Courts will not inquire into the Governor's motives in granting it. But fraud vitiates all things. If a pardon is fraudulently obtained from a Governor, and he so testifies and proves, the Courts will treat such a pardon as a nullity, under which no rights can be claimed. Com. v. Halloway, 44 Pa., 210, 84 Am. Dec., 431; Rathbun v. Baumel, 196 Iowa, 1233, 191 N.W., 297, 30 A.L.R., 216.
From the evidence, I find that the Governor granted the pardon in question, in reliance upon the affidavit of the prosecutrix as a free and voluntary confession by her that she had committed perjury, or sworn falsely, on the trial of the petitioner. This was the basis of the application for the pardon, and the representation made to the Governor, and, if true, would have justified the pardon.
As to this affidavit, Mr. John W. Timmons testifies: He thought that the prosecutrix had not told the truth on the trial of Ben Bess in 1915. That later Sallie Bess, the wife of Ben, came to see him and to get his aid in obtaining a pardon for her husband. She told him that she had been to see the prosecutrix several times and solicited her aid in procuring a pardon. She also approached the son of the prosecutrix, saying: "You are a boy to me. I call you Ervin. I wonder if we couldn't get your mother to forgive Ben of the deed he did. You know I have always been good to you and your mother," and told him Mr. Timmons wanted to see him at his office. Sallie Bess told Mr. Timmons that four or five years ago the prosecutrix wanted, or was willing, to accept $700 to turn Ben Bess loose, but that he wouldn't raise that amount, and negotiations were dropped. Last spring Sallie came to Timmons and said she had been talking with Parker, a son of the prosecutrix. Parker says Sallie asked him to see Mr. Timmons. Timmons testifies: Parker came to see him in accordance with Sallie's suggestion, and told Timmons that the prosecutrix wanted to have Ben released from the penitentiary. Timmons said: "Mr. Parker, does your mother want any compensation for it?" Parker said, "Yes, she wants $75." Timmons replied, "Well, I will see Sallie and get her to write to Ben and see if he can raise $75." She wrote, and in a few days she came back and told Timmons that Ben said he would raise $50. In the meantime, Parker came in and Timmons told him what Ben could do, and to see his mother and ask her if she would accept the $50. Parker saw his mother, and came back and told Timmons the prosecutrix would accept the $50. In a day or two Sallie came in, and Timmons told her to write to Ben to send the $50. Ben sent it, and then the prosecutrix signed the affidavit. Timmons, as Ben's agent, paid her this $50, as compensation for signing this affidavit. The affidavit had been theretofore prepared by an attorney at the direction of Mr. Timmons, who told the attorney that the prosecutrix desired to sign a statement to the effect that her testimony had not been true at the Ben Bess trial, and this attorney knew nothing to the contrary, or that he prosecutrix was to be paid for the affidavit. Mr. Timmons, in dictating the affidavit, did not attempt to put it in the words used by Parker in telling him what his mother was willing to sign, but stated in clear and definite language "what he says he gathered Parker wanted his mother to say." Mr. Timmons had no prior conversation with the affiant, but says he thought he was paying for a true statement, and denies that he had any intention of paying for a false statement.
When the affidavit had been prepared by the attorney, Mr. Timmons met the prosecutrix and Parker, her son, at the office of the probate judge, and read over the affidavit in their presence, in a low voice, without otherwise calling their attention to its language, and had the prosecutrix to sign it, and paid her the $50. The master finds that an opportunity was thus afforded the woman to know the contents of the affidavit when she signed it, but also finds that, while she knew and intended that the affidavit was to be used for the purpose of getting Ben Bess a pardon, yet because of her limited education and intelligence she did not understand the full purport of the affidavit. The prosecutrix is an illiterate woman, of limited capacity, and she now denies she knew it contained the statement that her testimony at the trial was untrue. In her anxiety for the money, her attention may well have been distracted.
The above-stated facts show that the payment of money by the petitioner and his agent to the prosecutrix as compensation for making the affidavit furnished an improper motive for making it, and amounted to bribery of a witness, whose testimony should have been influenced solely by the conscientious cause of duty. State v. Cole, 107 S.C. 285, 92 S.E., 624; State v. Dooley, 82 Wn., 483, 144 P., 654.
Judgments could not command respect, if liable to be set aside or nullified by changes in testimony induced by bribery. When the affidavit so obtained was presented to the Governor as the free and voluntary confession of perjury by the prosecutrix, without any disclosure of the agreement to pay the prosecutrix for the affidavit, and of the further circumstance that it was not dictated by her; thus, suppressing circumstances which materially affected its weight as evidence, it was believed by the Governor to be the free and voluntary confession of the prosecutrix, and operated as a fraud in obstruction of justice. I find, from the evidence, that the affidavit presented to the Governor as the free and voluntary confession of the prosecutrix was not such confession, first, because she did not fully understand the contents or purport when she signed; and, second, because she was induced to sign by bribery; and that the use of the affidavit, so obtained, to obtain the pardon from the Governor worked a fraud in obstruction of justice, which I conclude renders the pardon a nullity, and forbids the discharge of Ben Bess under it.
It is therefore adjudged that the second and third exceptions to the master's report are sustained, and that Ben Bess be remanded to the custody of the State penitentiary.
EXCEPTIONS1. It is respectfully submitted that his Honor, Judge Townsend, committed error of law in failing to order the release of said Ben Bess, when it appeared, from the return filed by the respondent, that he was not committed or detained in the said penitentiary by virtue of any legal process or commitment.
2. It is respectfully submitted that his Honor, Judge Townsend, committed error of law in failing to order the release of said Ben Bess at the hearing at which a return had been made to the writ of habeas corpus by the respondent, in that it appears from the face of such return that the said Ben Bess was not committed or detained by virtue of any process that was legally competent to cause the commitment and detention in the said penitentiary of said Ben Bess.
3. It is respectfully submitted that his Honor, Judge Townsend, committed error of law in failing and refusing to recognize that the judgment and sentence upon which said Bess had been originally committed to the said penitentiary was no longer in force and effect, in that the same was wiped out and forever ended by virtue of a pardon issued by the Governor of South Carolina and duly delivered to said Ben Bess.
4. It is respectfully submitted that his Honor, Judge Townsend, committed error of law in failing and refusing to order the discharge of said Ben Bess from the said penitentiary within two days after the hearing held upon the writ of habeas corpus issued in his behalf, in that the law of South Carolina made it mandatory upon his Honor to order such discharge, no legal cause having been shown for the imprisonment.
5. It is respectfully submitted that his Honor, Judge Townsend, committed error of law in holding that the return of the respondent presented any issue that could be tried by a court of equity, in that (a) the proceeding was on the law side of the court; (b) the return raised no issue triable by any Court and prayed for no relief at the hands of a Court of equity.
6. It is respectfully submitted that his Honor, Judge Townsend, was without jurisdiction to try the issue of fraud alleged to be raised by the return of the respondent in this proceeding, because:
(a) This was a special proceeding, and not an action.
(b) Such an issue could only be raised by an action, instituted directly for such purpose.
(c) Such an action could only be instituted by service of a summons, as provided in the Civil Code of Procedure of South Carolina.
7. It is respectfully submitted that his Honor, Judge Townsend, committed error of law in ordering a reference to be held in this case before the master in equity for Richland County, in that the proceedings did not raise any issues that were legally referable to a master in equity.
8. It is respectfully submitted that his Honor, Judge Townsend, committed error of law in holding that the return of the respondent raised the issue of fraud, in that the said return shows upon its face that no such issue was properly raised therein.
9. It is respectfully submitted that his Honor, Judge Townsend, committed error of law in holding that the pardon in this case was fraudulently obtained for the benefit of said Ben Bess, in that there is no proof whatsoever in the record to sustain such a holding.
10. It is respectfully submitted that his Honor, Judge Townsend, committed error of law in holding that the Governor granted the pardon in question upon the ground that the affidavit subscribed by the original prosecutrix of Ben Bess was a "free and voluntary" confession by her that she had committed perjury or sworn falsely in the trial of said Ben Bess, in that there is no testimony in the record that reasonably tends to support such a conclusion.
11. It is respectfully submitted that his Honor, Judge Townsend, committed error of law in his conclusions, and judgment thereon, upon incompetent testimony, to wit: "You are a boy to me. I call you Ervin. I wonder if we couldn't get your mother to forgive Ben of the deed he did. You know I have always been good to you and your mother" — in that no such testimony is properly in the record, such alleged testimony having been duly objected to by counsel for said Ben Bess upon the ground that it was hearsay and incompetent, such objection having been sustained by the master.
12. It is respectfully submitted that his Honor, Judge Townsend, committed error of law in holding that the payment to the original prosecutrix of $50 was made in the nature of a bribe, in that the record distinctly shows that the sole purpose of such payment was to have the woman make a true statement of the facts of the original case.
13. It is respectfully submitted that his Honor, Judge Townsend, committed error of law in predicating his conclusions and judgment in this case upon the ground that the payment of money to the prosecutrix by said Bess or his agents was made with an improper motive, or for the purpose of bribing her to make a false affidavit, in that there is no testimony in the record that reasonably tends to support such a conclusion.
14. It is respectfully submitted that his Honor, Judge Townsend, committed error of law in holding that there was any effort whatsoever upon the part of said Bess or his agents to withhold from the Governor the fact that the sum of $50 had been paid to the prosecutrix at the time she signed the affidavit in question, in that there is no testimony in the record that reasonably tends to support such a conclusion.
15. It is respectfully submitted that his Honor, Judge Townsend, committed error of law in holding that Governor Richards was not fully informed of the fact that a payment of $50 had been made to the prosecutrix on behalf of Ben Bess at the time she signed the affidavit in question, in that there is no evidence in the record upon which such a finding can be predicated.
16. It is respectfully submitted that his Honor, Judge Townsend, committed error of law in basing his judgment in this case upon testimony of the prosecutrix which tended to explain, modify, and set aside that which she had previously sworn to under circumstances that gave her ample opportunity to fully understand and comprehend the statement that she was making under oath, in that his Honor thereby gave full credence to one sworn statement of this witness, and absolutely disregarded and wiped out another sworn statement of the same witness, that was clearly of greater weight as evidence than the one accepted as true by the Court.
17. It is respectfully submitted that his Honor, Judge Townsend, committed error of law in holding and adjudging that the statement set out in the affidavit signed by the prosecutrix and submitted to the Governor was not true, in that the master had found (and his Honor concurred) that such statement was entitled to greater weight as evidence than was the attempted repudiation of it by the affiant, since the repudiation was attempted only after notice had been brought home to the affiant that she would probably be prosecuted for perjury.
18. It is respectfully submitted that his Honor, Judge Townsend, committed error of law in finding and ruling that the affidavit presented to Governor Richards in behalf of said Bess was not the free and voluntary confession of the prosecutrix, in that the only reasonable conclusion to be reached from the testimony in the record is that the woman voluntarily approached — either by herself or her son, who acted as her agent — the agent of said Bess with the proposition to do that which would work the release of said Bess from the penitentiary, and that she thereafter went of her own free will and accord to the office of the probate Judge of Florence County and signed the affidavit in question, after it had been read in the presence of her son and herself, both of whom had ample opportunity to fully inform themselves as to its contents.
19. It is respectfully submitted that his Honor, Judge Townsend, committed error of law in finding and ruling that any fraud was perpetrated upon the signer of the affidavit in question, in that the record clearly shows that no fraud whatsoever was perpetrated upon her, and his Honor should have so found and ruled.
20. It is respectfully submitted that his Honor, Judge Townsend, committed error of law in finding and ruling that any fraud was perpetrated upon Governor Richards in connection with the procurement from him of the pardon in question, in that the record clearly shows that no fraud whatsoever was attempted or perpetrated by Ben Bess or his agents in connection with the procurement of the said pardon, and his Honor should have so held and ruled.
21. It is respectfully submitted that his Honor, Judge Townsend, committed error of law in sustaining either or any of the exceptions to the master's report in this case, the record clearly showing that the findings of the master were fully sustained by the evidence presented at the hearing before him and that his findings were correct in every respect, while the findings of his Honor are contrary to such evidence.
22. It is respectfully submitted that his Honor, Judge Townsend, committed error of law in remanding the said Ben Bess to the penitentiary, in that it had been fully and clearly shown that he had been legally discharged therefrom by virtue of an unconditional pardon issued by the Governor of South Carolina, which said pardon was in full force and effect at all times from the date of its issuance and delivery to said Ben Bess, and that by virtue of said pardon said Bess had been forever relieved of the sentence imposed upon him by the Judge who presided at his trial.
23. It is respectfully submitted that his Honor, Judge Townsend, committed error of law in finding and ruling that the pardon in question was and is a nullity, in that he should have found and ruled that it was and is full, complete, and effective, and that as a matter of law it operated as a bar and estoppel from any further charges against said Bess arising out of, or in any way connected with, the original crime for which he had been committed to the said penitentiary, and that it restored him to his full rights and liberties as a citizen of the State of South Carolina.
24. It is respectfully submitted that his Honor, Judge Townsend, committed error of law in finding and ruling that the pardon in question was and is a nullity, in that the evidence presented on behalf of said Bess fully established that it was and is a grant or deed duly and regularly issued in and for the State of South Carolina by the official having the legal power and authority to issue such an instrument, and the said grant or deed was and is still outstanding in full force and effect, the same never having been canceled as a matter of law.
25. It is respectfully submitted that his Honor, Judge Townsend, committed error of law in failing and refusing to order the discharge of said Ben Bess, in that on the whole record it is clearly shown that he was and is entitled to his liberty, because:
(a) He was relieved of any further service of the original sentence imposed upon him by the late Judge Memminger by virtue of the pardon regularly issued by and in behalf of the State of South Carolina and duly delivered to him and under which said pardon he had been duly, regularly, and lawfully released from the State penitentiary.
(b) He was induced to return to the said institution by representations which led him to believe that he was in danger from mob violence, and that he could leave the said institution at any time that he desired so to do, and having been admitted to the said institution under such conditions, he cannot be held therein as a prisoner, as this would result in the perpetration of a fraud on said Ben Bess, and would be contrary to equity, good conscience, and sound public policy.
(c) Such a course would place the State of South Carolina in the position of adopting a manifest subterfuge and being guilty of sharp practice in an alleged effort to vindicate the law, which would violate the maxim that those who appeal to a Court of equity must come into Court with clean hands.
Mr. N.J. Frederick, for appellant, cites: "Writ of Habeas Corpus": 8 Howard Pr., 478. Allegation of a mere conclusion of law raises no issue: 65 S.C. 285. As fraud: 65 S.C. 184; 9 Enc. Pl. Pr., 685. "Pardons": 60 Pac., 224; A. E. Enc. L.2d 582; 191 N.W., 297. Pardon once delivered cannot be revoked: 265 Pac., 656; 135 Pac., 428; 146 Pac., 921; 162 S.W. 891; 149 N.C. 436; 1 Bishop Cr. L., 907; 191 N.W., 297; 73 Ala., 517; 48 Am. Rep., 462; 65 Ark. 475. Pardon regarded as deed: 44 Pa., 210; 7 Fed. Cas., No. 3844; 171 Pac., 577; 193 Pac., 645. Proceeding to set aside a deed is an "action": Secs. 383, 384, Code Proc. "Bribery": 9 C.J., 402. An erroneous recital is no proof of fraud: 11 Whart. Cr. Proc., 1467.
Mr. A.L. King, also for appellant, cites: "Habeas Corpus": Secs. 1-3, Code Proc.; Hind on Habeas Corpus, 230; Art. 5, Sec. 31. Valid pardon: 8 S.C. 408; Id., 495; 135 Pac., 428; 47 L.R.A. (N.S.), 1036. Pardon after delivery may not be revoked: 47 L.R.A. (N.S.), 1036; 162 S.W., 891; 39 So., 481; 27 Am. Rep., 337; 4 S.W. 897; 48 Am. Rep., 462; 49 Am. Rep., 71; 10 Okla. Cr. 140: 63 S.E., 108; 22 L.R.A. (N.S.), 238; 49 Am. Rep., 71; 1 Bond., 574; 7 Am. Rep., 600; 20 R.C.L., 13. Cases distinguished: 167 S.C. 285. Jurisdiction: 89 A.S.R., 216. "Bribery": 4 R.C.L., 1.
Attorney General John M. Daniel, and Asst. Atty. Generals Cordie Page and J. Ivey Humphrey, for respondent, cite: Jurisdiction once invoked cannot then be objected to: 29 C.J., 116; Reference to master proper: 75 S.C. 214; 8 S.C. 438; Id., 495. As to questioning validity of pardon in habeas corpus proceeding: 48 Am. Rep., 462; Bishop on Cr. L. (8th), 905. Finding of fact conclusive on appellate Court: 19 S.C. 603; 129 S.C. 26. Pardon obtained by fraud is void: 20 R.C.L., 550; 44 Ga. 357; 8 L.Ed., 640; 84 Am. Dec., 431; 5 Ind., 359; 4 S.W. 897; 59 Am. Dec., 566; 228 Pac., 82; 35 A.L.R., 973; 19 N.W., 297; 30 A.L.R., 216. Bribery: 4 Enc. L., 911, 912; 107 S.C. 285.
October 12, 1929. The opinion of the Court was delivered by
This is an appeal from an order of his Honor, Judge Townsend, Circuit Judge of the Fifth Judicial Circuit, refusing the application of Sallie Bess, wife of Ben Bess, in a habeas corpus proceeding, for an order discharging him from the custody of the superintendent of the South Carolina penitentiary. The facts are these:
The prisoner, Ben Bess, was tried in the Court of General Sessions of Florence County upon an indictment charging him with rape upon the person of one Maude Collins. and convicted. The sentence, dated June 7, 1915, was imprisonment in the penitentiary for a period of 30 years. The prisoner was duly committed and remained in the penitentiary until May 4, 1928.
A short while before that date a petition for a pardon was presented to the Governor, accompanied by an affidavit of the prosecutrix, Maude Collins, to the effect that her testimony upon the trial of Ben Bess was false, and by certain letters and statements, including the unqualified recommendation of the solicitor, the Governor acted upon that petition on May 4, 1928, by issuing an order suspending the said sentence during the good behavior of the prisoner. Upon the issuance of this order he was released from the penitentiary.
Later, on May 12th, the Governor, "for divers good causes and consideration hereunto moving," issued an unconditional pardon to Bess. On June 21st, the Governor, by a verbal order, directed the superintendent of the penitentiary to confine Bess in the penitentiary "for safe-keeping until further directed from this office." Bess was recaptured and reconfined in the penitentiary, I assume under the verbal order. It appears that this step was taken in consequence of the fact that, after the pardon had been issued, considerable stir arose in Florence, and an effort was made to have the prosecutrix, Maude Collins, indicted for perjury. Pending this excitement and the result of action by the grand jury, the Governor ordered the prisoner to be returned to the penitentiary "for safe-keeping."
On July 14th, the wife of Ben Bess presented to Hon. W.H. Townsend, at Columbia, a petition for a writ of habeas corpus, that Ben Bess be brought before him, in order that the cause of his imprisonment be inquired into, etc. The writ was signed and made returnable on July 19th. On July 16th, after the writ had been issued, the Governor confirmed by letter the verbal order given to the superintendent for the recapture of Bess, above referred to.
Later, on July 17th, the Governor issued an order reciting that "whereas, it has since been made to appear, and does now appear, and I am convinced that the affidavit which purported to be signed by the prosecutrix to the effect that Ben Bess was innocent, and upon which I relied in granting said suspension of sentence and purported pardon was false, and the representations moving me to grant the same were false and fraudulent, so that said suspension of sentence and purported pardon were obtained by fraud, and never became effective," and proceeded to "withdraw, cancel, and annul" the order of suspension and the unconditional pardon.
On the same day, July 17th, the Governor indorsed upon the record of the pardon in the office of the Secretary of State the following: "The within pardon is hereby canceled, annuled, and void, for the reason that I am convinced that it was issued on misinformation and obtained by fraud." On the same day the Governor made a like indorsement on the suspension of sentence.
On July 19th, the matter came up for a hearing before his Honor, Judge Townsend, as he had ordered. The Attorney General appeared for the respondent, who filed a return relying upon the attempted cancellation of the suspension and pardon. (Note. The verification by the respondent is dated in the record July 10th, which must be an error, as the writ was issued July 14th, and the return refers to the attempted cancellation by the Governor which did not take place until July 17th.)
After the reading of this return counsel for Bess offered in evidence the pardon, and moved for the immediate discharge of Bess upon the ground that said pardon was a complete and absolute reply to the return. Counsel also took the position that the issue of fraud could not be raised in such a manner and in such a proceeding, because, the pardon being complete and regular in every respect upon its face, its legal efficacy could not be defeated or impaired by such an attack as was attempted to be made upon it. His Honor overruled the motion, and, over protest of counsel for Bess, remanded him to the penitentiary; at the same time he made an order (also over the protest of counsel for Bess), referring the matter to the master in equity for Richland County, to take testimony on the question of fraud and report the testimony, with his findings thereon, to his Honor, or to any other Judge having jurisdiction.
The master, over protest of attorneys for Bess, proceeded to take the testimony and report as required by the order. He found that no fraud whatsoever had been perpetrated, and that, while the woman may not have understood the full purport of the affidavit, no unfair advantage had been taken of her in the transaction. He also found that her statement as set out in the affidavit was entitled to more weight as evidence than her attempted repudiation of it, because the evidence established that her effort to repudiate was not made until after threats of prosecution for perjury had been made against her.
In due time the Attorney General, for the respondent, filed exceptions. These exceptions were argued before Judge Townsend on August 23d. The attorneys for Bess argued that his Honor was without jurisdiction to consider the question of fraud. However, in an order signed the same day, Judge Townsend, while sustaining the master's finding that on account of the threats of prosecution for perjury against the woman, there was less reason to believe the attempted repudiation than there was to believe the affidavit, held that fraud had been practiced in the transaction, and that because of such fraud the pardon was void and never took effect. The prisoner was thereupon remanded to the South Carolina penitentiary, where he has ever since been, and now is being, held under the original sentence of the Court.
The main issue upon this appeal is whether the pardon issued by the Governor is open, in a habeas corpus proceeding, to an attack upon the ground that it was issued upon false representations made to the Governor; in other words, whether in such a proceeding it may be attacked upon the ground of fraud in obtaining it.
The exceptions, 25 in number, with subdivisions, raise many questions of regularity of the proceedings before his Honor, Judge Townsend, besides others; but in my opinion they may be disregarded, in view of a determination of the main issue as stated above.
I do not think that there can be a doubt of the power of a Court of equity, in a proper proceeding, to set aside and declare null and void a pardon which has been procured from the Governor by false representations of other species of fraud, nor that a pardon which bears upon its face the unquestionable proof of its invalidity may be so declared by the Governor, or by any one else whose duty may call for such a declaration; but when the pardon is upon its face regular, and the alleged fraud in its procurement depends upon issues of fact, neither the Governor, nor any one else short of a judicial tribunal, may rightly assume the function of deciding such issues of fact. In the present case, that is what the Governor essayed to do, without notice to the party most interested, and without the semblance of a judicial investigation.
There are some decisions to the contrary, but my investigation convinces me that the overwhelming weight of authority and reason is in favor of the foregoing principles. The general rule is that a pardon, assimilated to a deed, cannot be revoked after its issuance, delivery, and acceptance.
"The pardoning power cannot revoke a pardon once delivered, and accepted by the grantee or [his] agent." Ex parte Reno, 66 Mo., 266, 27 Am. Rep., 337; Rosson v. State, 23 Tex. App. 287[ 23 Tex.Crim. 287]; 4 S.W. 897.
An unconditional pardon, delivered, cannot be revoked even for fraud. Knapp v. Thomas, 39 Ohio St., 377, 48 Am.Rep., 462.
No subsequent action of the executive or of the Legislature can revoke a pardon once tendered and accepted. State v. Nichols, 26 Ark. 74, 7 Am. Rep., 600.
The Governor has no power to revoke a pardon after delivery. Ex parte Crump, 10 Okla. Cr. 133, 135 P., 428, 47 L.R.A. (N.S.), 1036.
"A full unconditional pardon takes effect upon delivery either to the person who is the subject of the favor, or to some one acting for him or on his behalf. After delivery, a pardon cannot be revoked. The authorities, without any conflict whatever, deny to the Governor any such power and hold the pardon, when delivered, to be irrevocable [citing many cases]." Ex parte Crump, 10 Okla. Cr. 133, 135 P., 428, 431, 47 L.R.A. (N.S.), 1036.
In the notes to 59 Am. Dec., 575, Judge Freeman observes: "But a Court cannot go behind a pardon on habeas corpus to inquire into the regularity of the proceeding; nor can the question be raised whether the pardon was obtained by false and fraudulent pretenses; and where it appears on habeas corpus that the pardon is fair on its face and unconditional, that puts an end to any inquiry into the manner of obtaining it."
In Ex parte Williams, 149 N.C. 436, 63 S.E., 108, 22 L.R.A. (N.S.), 238, it was held, quoting syllabus: "The Governor cannot recall a pardon which he has forwarded to the sheriff for delivery to a prisoner, after the prisoner has complied with the conditions precedent on which it was granted."
"When the charter of the prisoner's pardon reached the hands of the warden, his constituted legal custodian, the executive act of grace was complete, and forever irrevocable." Ex parte Powell, 73 Ala., 517, 521, 49 Am. Rep., 71.
"Simple intention on the part of the executive to bestow a pardon confers no right, and is perfectly nugatory until the intention may be said to be fully completed. This intention may be said to be fully completed when the pardon is signed by the executive, properly attested, authenticated by the seal of the State, and delivered, either to the person who is the subject of the favor, or to some one acting for him, or on his behalf. Whenever these things are done, the grantee, or donee of the favor, becomes entitled as a matter of right to all the benefits and immunities it confers, and of which he cannot be deprived by revocation or recall." Ex parte Reno, 66 Mo., 266, 27 Am. Rep., 337. See, also, In re Edymoin, 8 How. Prac. (N.Y.), 478; 20 R.C.L., 441; Territory v. Richardson, 9 Okla. 579, 60 P., 224, 49 L.R.A., 440; Com. v. Ahl, 43 Pa., 53.
As indicated above, there is a well-established exception to the general rule thus stated: that is, that as fraud destroys every transaction, it will destroy the efficacy of a pardon, if proven. The condition must appear by a judicial determination, not be the ipse dixit of any one, however high in executive station. That the Governor could not decide this issue I think is perfectly clear; that the proceeding conducted by his Honor, Judge Townsend, was coram non judice, I think is equally clear. Habeas corpus is not an action; it is a prerogative writ, forced upon a judicial officer by the Constitution of this State under a heavy penalty. It is a legal statutory proceeding, in no sense within the jurisdiction of that equity which may decree the cancellation of an instrument for fraud.
"An unconditional pardon, immediately operative," and which has been "delivered and accepted, cannot thereafter be revoked except for fraud in its procurement." Ex parte Ray, 18 Okla. Cr. 167, 193 P., 635, 640.
"Under all the authorities we have been able to find, the rule is that, when the Governor has issued an unconditional pardon, and it is accepted by the prisoner, and he is released thereunder, all power and control over the prisoner is gone. The Governor has no authority to revoke an unconditional pardon after its issuance, delivery, and acceptance. It is true that when a pardon had been obtained by fraud, when that fact is proven, it may be canceled and annuled by the proper tribunal; but this must be legally ascertained before an unconditional pardon can be canceled, and the prisoner rearrested and confined." Ex parte Rice, 72 Tex.Crim. 587, 162 S.W. 891, 900.
"Though an unconditional pardon cannot, after acceptance, be revoked by the Governor, it may be revoked if it was obtained through fraud, in which case, if no tribunal is fixed by its terms for the determination of the issue, recourse may be had to the Courts." Ex parte Redwine, 91 Tex.Crim. 83, 236 S.W. 96, affirmed Redwine v. Texas, 261 U.S. 608, 43 S.Ct., 433, 67 L.Ed., 825.
"Before delivery and acceptance, a pardon may be revoked by the officer or body granting it; but, if the pardon is not void in its inception, it cannot be revoked for any cause after its delivery and acceptance are complete, for then it has passed beyond the control of the officer or body who granted it, and becomes a valid and operative act, of the benefits of which its recipient can be deprived only in some appropriate legal proceeding." Ex parte Alvarez, 50 Fla., 24, 39 So., 481, 484, 111 Am. St. Rep., 102, 7 Ann. Cas., 88, quoting 24 A. E. Enc. L. (2d Ed.), 595.
"A pardon once granted will not be revoked, merely upon allegations that it was secured by fraud, but the fraud must be judicially ascertained." Ex parte Rice, 72 Tex.Crim. 587, 162 S.W. 891, 892.
"A Court of equity has the power to investigate the title to a pardon which is attacked on the ground that it was procured by the applicant's fraud on the Governor." Rathbun v. Baumel, 196 Iowa, 1233, 191 N.W., 297, 30 A.L.R., 216.
An analysis of or extracts from the wonderfully learned, luminous, and convincing opinion of the Supreme Court of the State of Ohio, in the case of Knapp v. Thomas, 39 Ohio St., 377, 48 Am. Rep., 462, could not possibly do justice to it. The syllabus of the case is: "An unconditional pardon may not be revoked even for fraud," in a habeas corpus proceeding. The conclusion of the Court, in my opinion, is sustained by a wealth of learning and irresistible logic.
In the case at bar the prisoner had received the benefit of two proclamations from the Governor, one suspending his sentence during good behavior, and the other granting him an unconditional pardon. In the case of State v. Renew, 136 S.C. 302, 132 S.E., 613, it was held that the defendant, who had received the benefit of a suspended sentence during good behavior, was entitled to have the issue whether his suspended sentence had been violated submitted to a jury. The Court approved the reasons assigned therefor in a similar case, State v. Sullivan, 127 S.C. 186, 121 S.E., 47, 51, by the writer hereof, in his dissenting opinion. There it was said:
"His personal liberty would be just as much at stake as that of any other person accused, and in its protection he would be equally entitled to the due process of the law, the definition of which by Mr. Webster in the Dartmouth College case, 4 Wheat., 518, 4 L.Ed., 629, is as incapable of improvement as `to gild refined gold': `A law which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial.' It is the bedrock of jurisprudence that no one shall be personally bound until he has had his day in Court, has been duly cited to appear, and has been afforded an opportunity to be heard. `Judgment without such citation and opportunity wants all the attributes of a judicial determination; it is judicial usurpation and oppression, and can never be upheld where justice is fairly administered.'" This reasoning applies a fortiori, it would appear, to the beneficiary of a pardon.
The decree of the circuit Judge is reversed, and the prisoner discharged, without prejudice to the right of the state authorities to institute such a proceeding in equity as they may be advised to secure a judicial determination of the issue of fraud in the procurement of the pardon.
MR. CHIEF JUSTICE WATTS, MR. JUSTICE BLEASE, and MESSRS. CIRCUIT JUDGES DENNIS, SEASE, WILSON, MAULDIN, BONHAM, and GRIMBALL concur.
In concurring in the filed opinion of Mr. Associate Justice Cothran, herein, my reasons therefor are herebelow stated:
Man, in his effort to protect the individual by organized government, provided in this organization for a sovereign, in America called executive. At first this sovereign was supposed "to do no wrong." Gradually, by revolution and strife, it was determined that the sovereign ought to do no wrong; next, that he will do no wrong; finally, by enactments of Parliament, he shall do no wrong. Hence his powers were hedged about by law, fixing so plain a path for his feet that he could do no wrong. Traveling in this path brings us back to the original truism, the sovereign can do no wrong, because hedged about by law.
So far as Ben Bess is concerned, the Governor has followed an uncharted path, and consequently has done wrong. After pardoning Bess and reincarcerating him, it is the same as if an individual had made a deed of property, and, finding it had been obtained by fraud and deceit, repossessed himself of the property without due process of law or by force.
For an understanding of the issues involved in this appeal a brief statement of the history of the case is necessary.
In the year 1915 Ben Bess was tried and convicted in the Court of General Sessions of Florence County upon an indictment charging him with rape upon the person of Maude Collins, and was sentenced by the Court to imprisonment in the State penitentiary for a period of 30 years, and remained in the penitentiary until May 4, 1928, on which date the Governor of the State, his Excellency, John G. Richards, issued an order suspending the said sentence of the prisoner during his good behavior, and he was released from the penitentiary. Thereafter, May 12, 1928, the Governor issued what purported to be a full pardon to the prisoner. The said orders issued by the Governor were based upon a petition asking for a pardon of Bess, an accompanying affidavit of the said Maude Collins, certain letters, and a recommendation of the solicitor who represented the State at the trial of Bess under said indictment. Acting on a verbal order received from the Governor June 21, 1928, which verbal order was confirmed by a written order dated July 16, 1928, the respondent, James N. Pearman, superintendent of the South Carolina penitentiary, received and confined the said Ben Bess in the State penitentiary for safe-keeping. On the 17th day of July, 1928, the Governor issued an order whereby he withdrew, canceled, and annulled the suspension of sentence and the said purported pardon granted to the said Ben Bess on the 4th day of May and the 12th of May (respectively), 1928, for the reason, as stated by the Governor in said order, that the Governor was convinced "that the same were issued on misinformation and obtained by fraud," and an entry was made on the record of the Governor to the same effect.
On the 14th day of July, 1928, a petition was presented by Sallie Bess, wife of Ben Bess, to Hon. W.H. Townsend, Judge of the Fifth Judicial Circuit, asking for a writ of habeas corpus for the purpose of bringing before him the said Ben Bess, that his imprisonment in the State penitentiary might be inquired into, and such proceeding had as the law and justice required. Judge Townsend issued the writ prayed for, which writ was directed to James N. Pearman, superintendent of South Carolina penitentiary, respondent herein, and was made returnable July 19, 1928. A return to the writ for the respondent, which return will be reported, was filed by the Attorney General, who appeared for the respondent at the hearing. At the hearing counsel for Ben Bess presented the purported pardon deed, to which reference has been made, and moved that he be "forthwith restored to his liberty, upon the ground that no legal cause had been shown by the return for his imprisonment."
This motion having been overruled by his Honor, Judge Townsend, his Honor referred the matter to J.C. Townsend, Esq., master in equity for Richland County, in which the writ was issued, to take and report the testimony with his findings thereon. The order of reference was opposed by counsel for Bess, and, when the matter was called up before the master, counsel for Bess appeared, but objected to going into the proceedings under the order of reference. This objection was overruled by the master and the reference proceeded. At the reference Ben Bess was represented by the same counsel who appear for him in this Court, and the respondent was represented by the Attorney General as Assistant Attorney General. After taking the testimony offered by the parties, the master reported the same, together with his finding of facts thereon.
The principal question involved in the case is whether or not the said suspension of sentence and the purported pardon deed were issued on misinformation and obtained by fraud, and, if so, whether or not that issue can be adjudicated in this proceeding.
The master's finding was to the effect that no fraud whatsoever was perpetrated against Maude Collins, who signed an affidavit which was used in connection with the petition before the Governor for a pardon. It was this affidavit upon which the solicitor acted when he recommended to the Governor that the petition be granted, and it clearly appears from the testimony in the case that this affidavit was the moving factor in inducing the Governor to grant a suspension of sentence and later issue the purported pardon. The affidavit in question was to the effect that the testimony which the affiant gave upon the trial of Ben Bess was untrue, and that Ben Bess should not be serving any sentence therefor. While the master held that there was no fraud perpetrated upon this party in procuring the affidavit, he reached the conclusion from the testimony in the case that, on account of her "limited education and intelligence," she did not understand the full purport of the affidavit which she signed, and that her interpretation of the same, that it was only given with the intention of forgiving the accused, was different and at variance from the interpretation placed upon the same by the Governor, when he had before him the consideration of the petition for a pardon.
To the master's report the Attorney General filed exceptions, and the matter was heard by his Honor, Judge Townsend, August 23, 1928, upon the testimony taken and reported by the master, together with the findings thereon and exception thereto. At the hearing the Attorney General and his assistants presented arguments for sustaining the exceptions, and counsel for Bess presented arguments contra. At this hearing before Judge Townsend, counsel for Bess took the position, as at the former hearing, that his Honor was without legal authority to render any judgment other than one that would restore Bess to his liberty, and again insisted upon their position that no order of reference could be issued in such a proceeding as the one then before the Court.
After due consideration, his Honor, Judge Townsend, sustained the second and third exceptions to the master's report, which exceptions were as follows:
"That the master erred, it is respectfully submitted, in holding and finding in paragraph 10 of the report that no fraud whatsoever was perpetrated against the affiant (Mrs. Maude Collins) in obtaining the affidavit repudiating her testimony given at the original trial; whereas, he should have held that the affiant was not informed and did not know the contents of said affidavit, as stated in paragraph 11 of said report, and that the same was, therefore, obtained from her on misinformation and by fraud.
"That the master erred, it is respectfully submitted, in not finding and stating affirmatively and positively that suspension of sentence and pardon were obtained from the Governor on misinformation and fraud, and that the Governor would not have signed the suspension of sentence by the said affidavit, which amounted to fraud upon the Governor and upon the State."
The said Ben Bess was thereupon, by order of Judge Townsend, issued in said matter, remanded to the custody of the State penitentiary. From this order Ben Bess has appealed to this Court, and asks a reversal upon the grounds set forth in his exceptions.
The appellant, Ben Bess, presents to the Court for its consideration 25 exceptions, but under our view of the case it is not necessary to consider these exceptions separately. As stated above, the main question involved in the appeal is whether or not the said suspension of sentence and the purported pardon deed were issued on misinformation and obtained by fraud, and, if so, whether or not that question can be adjudicated in this proceeding.
As to the first question, that the suspension of sentence and the purported pardon deed were issued on misinformation and obtained by fraud, we do not consider it necessary to enter upon a discussion of the testimony bearing on this question, and a review of the same in our opinion would serve no useful purpose. We deem it sufficient to state that we think the evidence amply supports the finding of Judge Townsend "that the affidavit presented to the Governor [attached to the petition for a pardon] as the free and voluntary confession of the prosecutrix, was not such confession, first, because she did not fully understand the contents or purport when she signed; and, second, because she was induced to sign by bribery; and that the use of the affidavit, so obtained, to obtain the pardon from the Governor worked a fraud in obstruction of justice," and we may add, as we view the evidence, that the said purported pardon was issued on misinformation and obtained by fraud, which, as held by Judge Townsend, renders the pardon a nullity, and forbids the discharge of Ben Bess under it. The purported pardon being a nullity, no rights can be claimed thereunder. It was void from its incipiency, and should be regarded as having never had any force and effect in law. We fully agree with all of the findings of fact and conclusions of law of Judge Townsend, as set forth in his order issued in the cause, bearing date August 23, 1928, and think that the said Ben Bess was properly remanded to the custody of the state penitentiary.
In this connection we desire to state that we can readily understand how the solicitor was misled by the affidavit in question and caused to recommend a pardon for Bess, and we desire to further state that no blame whatsoever should be attached to the attorney who prepared the affidavit. In the preparation of the affidavit, the attorney acted upon information furnished by a third party; he had no conversation with the affiant, and had no intimation that a wrong was being done.
As to the second question, whether or not the issue of fraud can be adjudicated in this proceeding, this question must also be answered against appellant's contention. It seems to be conceded that a Court of equity may inquire into the conditions under which a pardon is issued, and adjudicate a question of fraud in obtaining the same; but it is contended by appellant that such inquiry and such adjudication cannot be made in a habeas corpus proceeding. We do not agree with this contention, but think that the Court in this proceeding had jurisdiction to pass the order which his Honor, Judge Townsend, issued. The Court in which the petition was filed asking for a habeas corpus writ was selected by the petitioner, and the respondent, pursuant to the rule issued, made a return in that Court. The petitioner, having invoked the jurisdiction of the Court by filing his petition therein, is not in a position to question its jurisdiction to consider the case on its merits, while contending that the said Court should exercise the authority to grant unto the petitioner his liberty. This, in effect, is the anomalous position occupied by the petitioner. He contends that he is entitled to his liberty upon the ground that the Governor issued to him a pardon, and that the Court in this proceeding can exercise jurisdiction for the purpose of issuing an order granting unto him his liberty upon the strength of this purported pardon, while at the same time denying to the Court the jurisdiction to inquire into the validity of the purported pardon, and determine whether it was procured lawfully or by fraud as charged by the respondent. From our viewpoint the position is inconsistent.
The appellant further contends, in this connection, that the weight of authority upholds his position that the Court of equity is the only Court that can inquire into the validity of a pardon, and that an action must be instituted in that Court for that purpose. We are unable to agree with appellant. The only cases to which our attention has been called which upholds appellant's position are the cases of Knapp v. Thomas, 39 Ohio St., 377, 48 Am. Rep., 462, which was decided in the year 1883, by a divided Court, three to two; In re Edymoin, 8 How. Prac. (N.Y.), 478, decided in 1853; State v. McIntire, 46 N.C. 1, 58 Am. Dec., 566; Com. v. Ahl, 43 Pa., 53-57, decided in 1862; and I fail to find that the Courts have followed these cases. The case of Ex parte Smith, 8 S.C. 495, cited by appellant as supporting his position, in which case the opinion of the Court was written by Mr. Justice McIver, later Chief Justice, not only does not support appellant's position on this point, but, in our opinion, strongly supports the position of the respondent, and is ample precedent for the order of Judge Townsend in considering and passing upon the validity of the purported pardon in question.
In the Smith case, as in the case at bar, on petition a writ of habeas corpus was issued, directed to the superintendent of the State penitentiary. Smith, a prisoner serving sentence, after conviction, in the State penitentiary, claimed his liberty on the strength of a purported pardon issued by D.H. Chamberlain as Governor of South Carolina. The superintendent of the penitentiary refused to recognize the purported pardon, upon the ground that the paper was not entitled to be respected as a pardon, because the person by whom it was signed was not at the time entitled to exercise the powers of Governor of the State, and the application for the writ was resisted upon the same ground; that Chamberlain's term of office had expired, and that Wade Hampton was at that time the lawful Governor of the State. Thereupon the Court, in the habeas corpus proceeding instituted by the petitioner, proceeded to inquire into and pass upon the validity of the purported pardon, and in doing so it was necessary to inquire into and decide who had been elected to and was entitled to hold the office of Governor of South Carolina, whether Chamberlain or Hampton. In this connection it may be stated that Chamberlain and Hampton were not parties to the proceeding, but it was necessary to decide the title to the office in order to pass upon the validity of the purported pardon in question in the habeas corpus proceeding. The circuit Judge decided the issue in favor of the petitioner, and ordered him released from imprisonment. On appeal to this Court the judgment of the circuit Judge was reversed, and the prisoner remanded to the custody of the superintendent of the penitentiary.
While the outcome of that case, remanding the prisoner to the custody of the superintendent of the State penitentiary, is not involved in the case at bar, the precedent set by the Court in that habeas corpus proceeding, by inquiring into and determining the validity of the purported pardon involved, supports respondent's position in the case at bar, and established a precedent for the action of Judge Townsend in inquiring into and passing upon the validity of the purported pardon involved in the case at bar. We may state, also, that a like precedent was set by the Court in the case of Ex parte Norris, 8 S.C. 408, another case cited by the appellant.
The case of Ex parte Crump, 10 Okla. Cr. 133, 135 P., 428, 47 L.R.A. (N.S.), 1036, cited by appellant, was a habeas corpus proceeding in the Courts of Oklahoma, similar to the one at bar, and in that case the Court inquired into and passed upon the validity of the purported pardon involved, just as Judge Townsend did in the case at bar, and as was done in Ex parte Smith, supra, and in Ex parte Norris, supra. The fact that in one instance the authority of the person who signed the purported pardon was involved, and in the other the fraudulent procurement of the signature of the person who signed the purported pardon was involved, could make no difference. In each instance it was a question of the validity of the purported pardon.
Under the report of the case of Rathbun v. Baumel, decided by the Courts of the State of Iowa, reported in 196 Iowa 1233, 191 N.W., 297, 30 A.L.R., 216, the annotator in his valuable notes makes this statement with reference to the rule: "And it has been expressly held, although, as subsequently shown, there is some dissent, that a pardon obtained by fraud worked upon the executive granting is thereby rendered void, and as such subject to attack on habeas corpus, where rights are claimed thereunder before the Courts. Thus, in Com. ex rel. Crosse v. Halloway (1863) 44 Pa., 210, 84 Am. Dec., 431, where a pardon was obtained by means of false and forged representations and papers, it was held that such facts rendered the pardon void, whether the papers themselves suggested the fraud or not, and that the suggestion of fraud could be raised by the Attorney General (and by him only) on habeas corpus issued to allow the prisoner to plead his pardon, and this, although the prisoner did not himself know of or participate in the fraud. * * * And in Dominick v. Bowdoin (1871), 44 Ga. 357, * * * the Court approved the rule that pardons obtained by fraud are void, and held that, upon suggestion of fraud upon the trial of habeas corpus, it was the duty of the Court to hear the evidence and pass upon its merits. So, in Rosson v. State (1887), 23 Tex. App. 287[ 23 Tex.Crim. 287], 4 S.W. 897, * * * where a prisoner sought to obtain his release from custody on habeas corpus based upon a pardon from the Governor, but the Attorney General set up that the pardon was void, because obtained by fraud or granted by mistake, as shown by the record, it was held that a pardon so obtained is absolutely void where the records show such fraud or mistake. In this case the Governor, after legal delivery of the pardon, had the superintendent of prisons return the same, whereupon he wrote upon it a direction to cancel because `issued on misinformation,' and the Court said that such indorsement, unrebutted by the person pardoned, was sufficient evidence on the face of the record to warrant the Court declaring the pardon void, since it established a prima facie case of fraud."
This was practically what was done in the case at bar. When Governor Richards discovered the fraud that had been practiced upon him in procuring the suspended sentence and purported pardon, he issued orders to the effect that the said orders were withdrawn, canceled, overruled, and void, for the reason that he was convinced that the same were issued on misinformation and obtained by fraud, and made an entry on the record to that effect. Judge Townsend had this record before him, as well as the purported pardon, when he decided the question and issued his order in the habeas corpus proceeding.
The annotator, to which reference is above made, further commenting on the rule, stated: "In Dominick v. Bowdoin, (Ga.), supra, in discussing the question what fraud is sufficient to warrant holding a pardon void on habeas corpus, the Court said that misrepresentation of material facts upon which the Governor acted, and which facts ought to have prevented clemency, if known, or any concealment of material facts or suggestion of false views to the Governor to procure the pardon, ought to be considered." The dissenting authorities, to which the annotator referred as holding a contrary view, we have mentioned above, and called attention to the same.
In the case of Com. v. Kelly (1872), 9 Phila. (Pa.), 586, it was held that a pardon and remission of forfeiture procured by forgery and fraud practiced upon the executive are void, and that the Attorney General may raise the question of validity upon a rule to show cause why an order opening the judgment and staying execution thereon should not be vacated.
In the case of Jamison v. Flanner, a recent case, decided by the Supreme Court of the State of Kansas, in the year 1924, reported in 116 Kan., 624, 228 P., 82, 85, 35 A. the Court, in the course of his discussion of this question L.R., 973, Mr. Justice Harvey in delivering the opinion of stated:
"The correct rule, gathered from the authorities, may be thus stated: The Court does not take judicial notice of individual pardons. When one relies upon a pardon issued to him individually to relieve him from prison, or for any other purpose, he must, in some way and in some proceeding, call it to the attention of the Court. The manner and the nature of the proceeding in which it is called to the attention of the Court are not material. When the Court's attention is called to the pardon, it will not inquire into the motives which prompted the pardoning official to issue the pardon, for to do so would be to usurp the pardoning power; but the Court will inquire into the authority of the pardoning official to issue the particular pardon in question, will inquire as to whether fraud was practiced upon the pardoning official, if that be suggested, though on that point much care must be exercised. * * *"
We are convinced that it is proper for the question of fraud charged in obtaining a purported pardon to be raised and passed upon in a habeas corpus proceeding, such as in the case at bar, and that this rule is supported by the weight of authority. Furthermore, in our opinion, there is no sound reason why the rule should not obtain. Of course, nothing herein stated is intended to convey the idea that the question could not have been raised and passed upon in a Court of equity in an action instituted for that purpose.
As to the error imputed to the Circuit Judge in ordering a reference in the matter, it is sufficient to state that, in our opinion, the action of the Circuit Judge in issuing the order of reference is supported by abundant authority and precedent.
We desire to state that, while we have not herein discussed the exceptions separately, we have considered all of them, and all questions fairly raised thereunder. We are unable to agree with appellant.
The exceptions should therefore be overruled, and the judgment of this Court should be that the order of his Honor, Judge Townsend, appealed from herein, be affirmed.
MR. JUSTICE STABLER, and MESSRS. CIRCUIT JUDGES JOHNSON, RICE, MANN, FEATHERSTONE, and RAMAGE concur in this dissent.