Bynum v. . Turner

87 S.E. 975, 171 N.C. 86, 1916 N.C. LEXIS 18

• Court: Supreme Court of North Carolina
• Decided: March 1, 1916
• Status: Published

Opinion

BRowN, J.

Tbe plaintiff, witb others, was convicted in tbe local criminal court of the crime of gambling, tbe defendant Turner being tbe trial justice, and a fine of $200 was imposed. Tbe plaintiff paid tbe fine to tbe chief of police, who paid it to Turner. Plaintiff was soon thereafter pardoned by tbe Governor, and now seeks in this action to recover tbe money.

When a full and absolute pardon is granted it exempts tbe recipient from tbe punishment which tbe law inflicts, whether death, imprisonment, or fine. If a fine has been imposed and has been paid into tbe Treasury of tbe State, or in this State to tbe treasurer of tbe Board of Education, before the pardon is granted, tbe money cannot be recovered back. 29 Cyc., 1568; Oxford v. U. S., 91 U. S., 474.

But a pardon will work a remission of a fine, although it has been paid, and will entitle tbe person pardoned to have tbe money returned if it is still within tbe control of tbe Executive, and tbe rights of third persons have not attached. 24 A. and E. Enc., 586. Therefore, a pardon by tbe President entitles tbe offender to restitution of tbe fine after it has been paid to tbe marshal and deposited by him in court. Opinion of Atty.-Gen. U. S., vol. 14, 599. But not if it has been paid into tbe treasury. It follows that plaintiff cannot recover of tbe defendant tbe Board of Education, for two reasons: First, it is admitted that tbe fine has never been paid to its treasurer; second, if it bad been paid, an action could not be sustained against tbe board after tbe fine bad been paid to its treasurer, for then tbe fine has reached its final destination and is beyond tbe reach of Executive clemency.

It is very doubtful if a civil action can be maintained against tbe trial justice, Turner, to recover a fine paid to bim in bis official capacity. Tbe proper remedy of plaintiff was to go into tbe magistrate’s court and move for restitution of tbe money upon pleading and exhibiting tbe pardon. If tbe money was still in tbe custody of that court it would be its duty to return it. As a personal judgment bas been rendered against defendant Turner, from which be did not appeal, tbe regularity of this proceeding as to bim is not before us. Tbe judgment is valid and must stand.

Turner admits in bis answer that be bas tbe money in bis possession. If so, it is bis duty to pay it to plaintiff in satisfaction of tbe judgment. If be bas paid it over to tbe trial justice’s court, as is stated in tbe brief of counsel, tbe plaintiff may move in tba.t court for its restitution, ■ and it will be the duty of the trial justice to order its restitution, when it must be applied to the satisfaction of the judgment.

The action is dismissed as to the Board of Education.

The costs of the Superior Court will be taxed against the plaintiff.

Action dismissed.