Opinion
13736.
JUNE 16, 1941. REHEARING DENIED JULY 9, 1941.
Petition for habeas corpus. Before Judge Paul S. Etheridge. Fulton superior court. March 5, 1941.
Claud F. Brackett and Lewis H. Fowler, for plaintiff.
John A. Boykin, solicitor-general, Bond Almand, solicitor, and Durwood T. Pye, for defendant.
1. A condition stipulated in a pardon requiring the prisoner to pay a fine of $50, and fixing no time within which it must be done, and containing no requirement that the prisoner serve the sentence imposed until this condition is performed, is a condition precedent, and until it is satisfied the pardon is inoperative. Huff v. Aldredge, 192 Ga. 12 ( 14 S.E.2d 456). Where no time for fulfillment of the condition precedent is stipulated in the pardon, the law requires that it be satisfied within a reasonable time. 13 C. J. 684, § 776; 20 R. C. L. 569, § 58.
2. Though a provision in a pardon reserving to the Governor authority to determine if the conditions are performed and to revoke the pardon clothes the Governor with power to act on such matters, yet this power of the Governor does not oust the courts of jurisdiction in the determination of the same questions. Muckle v. Clarke, 191 Ga. 202 ( 12 S.E.2d 339); Huff v. Aldredge, supra.
3. On the trial of a habeas-corpus case the prisoner is afforded a full hearing on whether or not he has satisfied the conditions of a pardon, and this satisfies the due process guaranteed to him by the constitution, Muckle v. Clarke, supra.
4. While under the Code, § 20-1105, a proper tender of the fine would be equivalent to its payment, yet when such tender is made after the time which the law allows for paying the fine, it does not have the effect of payment. Jarman v. Westbrook, 134 Ga. 19 ( 67 S.E. 403).
5. Under the foregoing rulings, the judgment remanding the prisoner to the custody of the law was authorized by the law and evidence.
Judgment affirmed. All the Justices concur.
No. 13736. JUNE 16, 1941. REHEARING DENIED JULY 9, 1941.
Toney G. Pappas brought habeas-corpus proceedings against J. C. Aldredge, sheriff of Fulton County. Pappas was convicted on the charge of operating a lottery, and was sentenced on December 15, 1939, to serve a term of six months at hard work and labor. While his conviction was pending on review in the Court of Appeals and he was at liberty under a supersedeas bond, he procured, on November 23, 1940, a conditional pardon, and thereafter dismissed his case in the Court of Appeals. The pardon was conditioned upon his paying a fine of $50, and conditioned further upon his obeying all the laws of this State or of any other State and of the United States, and reserved in the Governor the right to revoke the same at the pleasure of the Governor. On February 21, 1941, an order was issued by the court in which he was sentenced, calling upon the prisoner to show cause on February 27, 1941, why his supersedeas bond should not be forfeited. Notice of this order was published in the Daily Report, the official organ of Fulton County, and was served upon the sureties on the supersedeas bond. Pappas failed to appear in court on February 27, as directed by the order of February 21, and his bond was forfeited. On February 27, 1941, he tendered to J. C. Aldredge, sheriff, the fine of $50, which tender was refused. On the habeas-corpus hearing the prisoner testified, that upon receipt of the conditional pardon, which was delivered to him by attorney Pat Avery on the day it was issued, he paid to his attorney Avery $200 with the understanding and direction that $50 of this sum be used in payment of the fine and the balance in satisfaction of fees due his attorney for procuring the pardon; that he accepted the pardon in good faith, intending to satisfy the conditions therein; that since this was the first and only criminal case he had ever had, he thought payment of the fine to his attorney was the proper way to pay the same; that he had been employed constantly since the date of his pardon, at a salary of $15 per week; and that he had made a continuing tender of his fine to the sheriff on February 27 and was at the time of the hearing ready and willing to pay the same. Pat Avery testified, that he was employed by Pappas to procure the pardon, and that the $200 paid to him at the time the pardon was delivered was for the sole purpose of paying for his services in procuring the pardon; that no part of this sum was to be used for the payment of the fine of $50; and that he advised Pappas at the time that he should pay the fine immediately, because the pardon would not become effective until the fine was paid. The petitioner excepted to a judgment remanding him to the custody of the sheriff.