Appellant was charged with the theft of a horse from O.T. Cline. When tried he was convicted, and his punishment assessed at two years confinement in the penitentiary.
There are but two grounds presented in the motion for a new trial, the first thing being that the evidence is insufficient to support the verdict, and the other is that the court erred in not submitting to the jury, at the request of defendant, the issue as to whether defendant had ever before been convicted of a felony, defendant having requested that he do so under the provisions of the law as passed by the Thirty-Second Legislature, being chapter 44. The court endorsed on said application refused, because he saw no equities for defendant if he is guilty. Appellant excepted to the action of the court in refusing to submit that issue to the jury.
1. As to the first ground, there is no question but what the horse of Mr. Cline was stolen on the night of the 16th or morning of the 17th of May. Mr. Peak testified that he was in the livery business at Morgan. That in the month of May, not remembering the date of the month, but on Thursday or Friday of the week, "a boy came to his stable leading the horse stolen from Mr. Cline, and offered to sell the horse to him, and that he recognized the defendant as the same boy that came to his stable with the horse. That he had seen the boy in jail when he was a witness before the grand jury and recognized him out of two or three others in the jail as the same boy." J.A. Crawford testified he lived at Morgan, and saw a man leading the horse through an alley to the livery stable, and talked to him; that he noticed closely because of his proposal to sell the horse so cheap, saying: "I did not see the boy any more after that until I came here as a witness before the grand jury at this term of the court, when I saw him in the jail, and there I took him to be the same party I saw at Peak's barn with the horses. There could be two men just alike, of course. I looked at him closely in the jail. What attracted my attention to him was the way he acted and manuevered around and the price he put on the horses, and he was nervous, and seemed to want to go away, and wanted to know too much about where Mr. Peak had gone. To the best of my knowledge the defendant is the same man I saw at Peak's stable in Morgan with the horses, as described. `I have no doubt in my own mind, but a man could be mistaken.' `In my own mind I have no doubt about it.'"
J.B. White testified that he was constable of the Morgan precinct, and when Mr. Peak came to him he went and talked to
defendant, saying as well as he remembered it was on Thursday about May 18th when he saw the boy with the horses in Morgan, saying the young man who had the horses looked like defendant. On cross-examination he said: he went to the jail for the purpose of identifying the man. There were two other men in jail with defendant, but neither of them resembled the Morgan man, but he thought defendant did resemble him. As to whether he could be mistaken in his identity of the defendant, he said he would not be positive about it.
When the marshal of Stephenville went to Morgan to see about the horses, these three witnesses described the young man who had the horses, and from this description the marshal arrested defendant. The horse was stolen at Stephenville, and carried to Morgan, a distance of about fifty miles. Defendant offered testimony to show that he was at home in Stephenville on the 15th, 16th and 17th of May, and went from home to Dublin on the night of the 17th, and two witnesses testify that he spent Thursday the 18th in Dublin.
The issue was thus squarely drawn as to whether defendant was the person who stole the horse, the testimony offered by him proving a complete alibi, if the jury had believed it. But under appropriate charges the jury find against him. The testimony offered by the State, as shown above, would justify such finding, and under our judicial system, the jury being the judges of the credibility of the witnesses and the weight to be given their testimony, we never feel inclined to disturb their verdict on an issue of fact where there is evidence to support their finding. Mr. Peak positively identifies him as the man in possession of the stolen horse, and the other witnesses who saw the man at Morgan with the horse support him.
2. As to the other question, that the court erred in refusing to submit to the jury the question as to whether or not defendant had theretofore been convicted of a felony, their finding to be the basis of an application to the trial judge to suspend the sentence under the provisions of Chapter 44 of the Acts of the Thirty-Second Legislature, presents a question of some difficulty. Said Act reads:
"Section 1. That when there is a conviction of any felony in any District Court of this State, except murder, rape, perjury, burglary, and burglary of a private residence, robbery, arson, seduction, bigamy, and abortion, the court may suspend sentence upon application made therefor in writing by the defendant when the punishment assessed by the jury shall not exceed five years confinement in the penitentiary; provided, that in no case shall sentence be suspended except when the proof shall show and the jury shall find in their verdict that the defendant has never before been convicted of a felony in this State or in any other jurisdiction.
"Sec. 2. The court shall submit the question as to whether the defendant has ever before been convicted of a felony, only upon
request in writing by the defendant, and when the issue is raised by the evidence.
"Sec. 3. When sentence is suspended at the request of the defendant no appeal shall lie from the judgment of conviction.
"Sec. 4. Upon application for suspension of sentence, the court may hear evidence as to the reputation of the defendant as a law-abiding citizen, and as to whether the defendant has ever been before convicted of a felony, and upon any other matter that may in its judgment enable it to arrive at a proper conclusion; and the suspension of the sentence, or the refusal to do so, shall be wholly within the discretion of the trial court, and the exercise of such discretion shall not be subject to review in any court; provided that in no case shall sentence be suspended unless the jury recommend it in their verdict.
"Sec. 5. When sentence is suspended, the judgment of the court on that subject shall be that sentence on the judgment of conviction shall be suspended during the good behavior of the defendant. By the term `good behavior' is meant that the defendant shall not be convicted of any felony during the time of such suspension or any misdemeanor that involves moral turpitude that the court who granted such suspension may deem not good behavior.
"Sec. 6. Upon the final conviction of the defendant of any other felony or misdemeanor as provided in Section 5 of this Act, pending the suspension of sentence, the court shall cause proper process to issue for the arrest of the defendant, if he is not then in the custody of said court, and upon the execution of the capias, and during a term of the court, shall pronounce sentence upon the original judgment of conviction, and shall cumulate the punishment of the first with the punishment in any subsequent conviction or convictions.
"Sec. 7.
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Appellant was charged with the theft of a horse from O.T. Cline. When tried he was convicted, and his punishment assessed at two years confinement in the penitentiary.
There are but two grounds presented in the motion for a new trial, the first thing being that the evidence is insufficient to support the verdict, and the other is that the court erred in not submitting to the jury, at the request of defendant, the issue as to whether defendant had ever before been convicted of a felony, defendant having requested that he do so under the provisions of the law as passed by the Thirty-Second Legislature, being chapter 44. The court endorsed on said application refused, because he saw no equities for defendant if he is guilty. Appellant excepted to the action of the court in refusing to submit that issue to the jury.
1. As to the first ground, there is no question but what the horse of Mr. Cline was stolen on the night of the 16th or morning of the 17th of May. Mr. Peak testified that he was in the livery business at Morgan. That in the month of May, not remembering the date of the month, but on Thursday or Friday of the week, "a boy came to his stable leading the horse stolen from Mr. Cline, and offered to sell the horse to him, and that he recognized the defendant as the same boy that came to his stable with the horse. That he had seen the boy in jail when he was a witness before the grand jury and recognized him out of two or three others in the jail as the same boy." J.A. Crawford testified he lived at Morgan, and saw a man leading the horse through an alley to the livery stable, and talked to him; that he noticed closely because of his proposal to sell the horse so cheap, saying: "I did not see the boy any more after that until I came here as a witness before the grand jury at this term of the court, when I saw him in the jail, and there I took him to be the same party I saw at Peak's barn with the horses. There could be two men just alike, of course. I looked at him closely in the jail. What attracted my attention to him was the way he acted and manuevered around and the price he put on the horses, and he was nervous, and seemed to want to go away, and wanted to know too much about where Mr. Peak had gone. To the best of my knowledge the defendant is the same man I saw at Peak's stable in Morgan with the horses, as described. `I have no doubt in my own mind, but a man could be mistaken.' `In my own mind I have no doubt about it.'"
J.B. White testified that he was constable of the Morgan precinct, and when Mr. Peak came to him he went and talked to
defendant, saying as well as he remembered it was on Thursday about May 18th when he saw the boy with the horses in Morgan, saying the young man who had the horses looked like defendant. On cross-examination he said: he went to the jail for the purpose of identifying the man. There were two other men in jail with defendant, but neither of them resembled the Morgan man, but he thought defendant did resemble him. As to whether he could be mistaken in his identity of the defendant, he said he would not be positive about it.
When the marshal of Stephenville went to Morgan to see about the horses, these three witnesses described the young man who had the horses, and from this description the marshal arrested defendant. The horse was stolen at Stephenville, and carried to Morgan, a distance of about fifty miles. Defendant offered testimony to show that he was at home in Stephenville on the 15th, 16th and 17th of May, and went from home to Dublin on the night of the 17th, and two witnesses testify that he spent Thursday the 18th in Dublin.
The issue was thus squarely drawn as to whether defendant was the person who stole the horse, the testimony offered by him proving a complete alibi, if the jury had believed it. But under appropriate charges the jury find against him. The testimony offered by the State, as shown above, would justify such finding, and under our judicial system, the jury being the judges of the credibility of the witnesses and the weight to be given their testimony, we never feel inclined to disturb their verdict on an issue of fact where there is evidence to support their finding. Mr. Peak positively identifies him as the man in possession of the stolen horse, and the other witnesses who saw the man at Morgan with the horse support him.
2. As to the other question, that the court erred in refusing to submit to the jury the question as to whether or not defendant had theretofore been convicted of a felony, their finding to be the basis of an application to the trial judge to suspend the sentence under the provisions of Chapter 44 of the Acts of the Thirty-Second Legislature, presents a question of some difficulty. Said Act reads:
"Section 1. That when there is a conviction of any felony in any District Court of this State, except murder, rape, perjury, burglary, and burglary of a private residence, robbery, arson, seduction, bigamy, and abortion, the court may suspend sentence upon application made therefor in writing by the defendant when the punishment assessed by the jury shall not exceed five years confinement in the penitentiary; provided, that in no case shall sentence be suspended except when the proof shall show and the jury shall find in their verdict that the defendant has never before been convicted of a felony in this State or in any other jurisdiction.
"Sec. 2. The court shall submit the question as to whether the defendant has ever before been convicted of a felony, only upon
request in writing by the defendant, and when the issue is raised by the evidence.
"Sec. 3. When sentence is suspended at the request of the defendant no appeal shall lie from the judgment of conviction.
"Sec. 4. Upon application for suspension of sentence, the court may hear evidence as to the reputation of the defendant as a law-abiding citizen, and as to whether the defendant has ever been before convicted of a felony, and upon any other matter that may in its judgment enable it to arrive at a proper conclusion; and the suspension of the sentence, or the refusal to do so, shall be wholly within the discretion of the trial court, and the exercise of such discretion shall not be subject to review in any court; provided that in no case shall sentence be suspended unless the jury recommend it in their verdict.
"Sec. 5. When sentence is suspended, the judgment of the court on that subject shall be that sentence on the judgment of conviction shall be suspended during the good behavior of the defendant. By the term `good behavior' is meant that the defendant shall not be convicted of any felony during the time of such suspension or any misdemeanor that involves moral turpitude that the court who granted such suspension may deem not good behavior.
"Sec. 6. Upon the final conviction of the defendant of any other felony or misdemeanor as provided in Section 5 of this Act, pending the suspension of sentence, the court shall cause proper process to issue for the arrest of the defendant, if he is not then in the custody of said court, and upon the execution of the capias, and during a term of the court, shall pronounce sentence upon the original judgment of conviction, and shall cumulate the punishment of the first with the punishment in any subsequent conviction or convictions.
"Sec. 7. In any case of suspended sentence, upon the expiration of double the time assessed as punishment by the jury, the defendant may apply to the court, in term time, to have the judgment of conviction set aside; and if it shall appear to the court, upon the hearing of such application, that the defendant has not been convicted of any other felony, and that there is not then pending against him any charge of felony, the court shall enter an order reciting the facts, and that such judgment of conviction be set aside and annulled. After the setting aside of any judgment of conviction as herein provided for, the fact of such conviction shall not be shown or inquired into in any court for any purpose, except in such cases where the defendant has again been indicted for a felony, and in such event such prior conviction may be shown in case the defendant invokes the benefit of this Act.
"Sec. 8. When sentence is suspended, the defendant shall be released upon his own recognizance, in such sum as may be fixed by the court."
If the law is valid, it appears upon the written request of
defendant, when the issue is raised by the evidence, the court shall submit to them the question of whether or not the defendant has theretofore been convicted of a felony. This part of the law seems to be mandatory on the judge, and if the jury find that this is the first offense, and the punishment is for less than five years, it then becomes discretionary with the court as to whether or not he will suspend the sentence. The questions arise, has the Legislature the authority to confer upon district judges the authority to suspend sentence after a person has been legally convicted of crime, and has the Legislature the authority to confer on district judges the power to extend immunity from punishment under the conditions named in the Act? This law not only gives to district judges discretionary power to suspend the sentence of a person after he has been legally convicted of an offense, but also after lapse of time, upon a showing that he has been guilty of no other offense, to set aside the judgment of conviction, thus in terms conferring on them the power to grant pardons to persons convicted of crime.
Our Constitution provides in Sec. 11, Art. 4: "In all criminal cases, except treason and impeachment, he (the Governor) shall have power, after conviction, to grant reprieves, commutations of punishment and pardons; and under such rules as the legislature may prescribe he shall have power to remit fines and forfeitures. With the advice and consent of the Senate he may grant pardons in cases of treason, and to this end he may respite sentence therefor, until the close of the succeeding legislature."
That the Legislature has the power, being the representative of sovereignty, to confer this power on the courts can not be questioned, unless inhibited by the provisions of the Constitution. It specifically confers upon the Governor the authority to pardon, reprieve and grant commutations of punishment.
That the power to suspend the sentence does not conflict with the power of the Governor to grant reprieves is settled by the decisions of the various courts, it being held that the distinction between a "reprieve" and a suspension of sentence is that a reprieve postpones the execution of the sentence to a day certain, whereas a suspension is for an indefinite time. (Carnal v. People, 1 Parker Cr. Rep., 262; In re Buchanan, 40 N.E. 883, and cases cited in 7 Words Phrases, page 000.) This law can not be held in conflict with the power confided in the Governor to grant commutations of punishment, for a commutation is but to change the punishment assessed to a less punishment. A pardon, however, is held to be an act of grace proceeding from the power entrusted with the execution of the laws which exempts the individual on whom it is bestowed from the punishment the law inflicts for a crime which he has committed. This Act by its provisions provides that after a person has been legally convicted of a crime, and his sentence suspended under the provisions thereof, upon the expiration of double the time assessed as punishment
by the jury, the defendant may apply to the court to have the judgment of conviction set aside, and if it appears that he has not been convicted of any other offense, the judgment of conviction shall be set aside and annulled, thus giving to the District Courts the power and authority to exempt from punishment a person legally convicted of crime, and of which he has been adjudged guilty, and to which our laws affix a penalty. By the act of setting the judgment aside such person would also be restored to all the rights and privileges to which one is entitled who has never been convicted of an offense. In other words, this Act of the Legislature grants to such a person an unconditional pardon, although the word "pardon" is not used therein, and this necessarily includes the question, can the Legislature bestow upon any officer, other than the Governor, the power to grant an unconditional pardon? We have carefully examined the decisions in those states having constitutional provisions similar to our own, and it seems that an unbroken line of decisions hold that the power can not be granted to any other person or agency, where the Constitution of the State confers the power on the Governor. In the case of Butler v. State,97 Ind. 375, it is held:
"Article 3 of our State Constitution, section 96, R.S. 1881, distributes the powers of the government into three separate departments, the legislative, the executive, including the administrative, and the judicial, and provides that `no person charged with official duties under one of these departments shall exercise any of the functions of another, except as in this Constitution expressly provided.' Section 17 of article 5 (section 143, R.S. 1881) confers upon the Governor `the power to grant reprieves, commutations, and pardons, after conviction, for all offenses except treason and cases of impeachment, subject to such regulations as may be provided by law.' It also invests him with `power to remit fines and forfeitures, under such regulations as may be prescribed by law.' There is no express provision of the Constitution providing for the exercise of these powers by any person charged with official duties under the legislative or judicial department. The conclusion seems to be inevitable that in this State the Governor, under such regulations as may be provided by law, has the exclusive power to grant pardons, reprieves and commutations, and to remit fines and forfeitures. It follows that any legislative enactment which attempts to clothe the courts, or any of the courts, of this State with these powers, or any of them, is void as being in conflict with the fundamental law.
"The State v. Sloss, 25 Mo., 291, was a case arising upon an Act of the Legislature attempting to relieve persons from penalties incurred by violations of a certain penal statute. It was held that it was not competent for the Legislature to do this, as it was an invasion of the pardoning power which, by the Constitution of the State, was vested exclusively in the Governor. It was said in that case: `The powers of the General Assembly are not unlimited. All the
departments of our government are confined in their operations. They have prescribed limits, which they can not transcend. The union of the legislative, executive and judicial functions of government in the same body, as shown by experience, had been productive of such injustice, cruelty and oppression that the framers of our Constitution, as a safeguard against those evils, ordained that the powers of government should be divided into three distinct departments, and that no person charged with the exercise of powers properly belonging to one of these departments should exercise any powers properly belonging to either of the others, except in the instances expressly directed or permitted by the Constitution. Although questions have sometimes arisen whether a power properly belonged to one department of government or another, yet there is no contrariety of opinion as to the department of the government to which the power of pardoning offenses properly appertains. All unite in pronouncing it an executive function. So the framers of our Constitution thought, and accordingly vested the power of pardoning in the chief executive officer of the State."
"In The Attorney General v. Brown, 1 Wis. 513, the court said: `The policy of our Constitution and laws has assigned to the different departments of the State government, distinct and different duties, in the performance of which, it is intended that they shall be entirely independent of each other; so that whatever power or duty is expressly given to, or imposed upon the executive department, is altogether free from the interference of the other branches of the government. Especially is this the case, where the subject is committed to the discretion of the chief executive officer, either by the Constitution or by the laws. So long as the power is vested in him, it is to be by him exercised, and no other branch of the government can control its exercise.'
"The Legislature of Alabama passed a special Act requiring a county treasurer to refund to certain sureties money which they had been compelled, by judgment of court, to pay as a fine for their principal. In Haley v. Clark, 26 Ala. 439, it was held that the act was an attempt indirectly to remit a fine, and was in conflict with the Constitution. The following language occurs in the opinion: "The principal question is, whether this Act is unconstitutional. By article IV, section II, of the Constitution of Alabama, the power to remit fines and forfeitures is given to the Governor, and by the second article, the powers of the government are divided into three distinct departments — the legislative, executive and judicial, and no one of these departments, or person belonging thereto, can exercise any power properly belonging to either of the others, unless expressly directed or permitted by the Constitution. The power to pardon offenses, except in case of treason and impeachment, and to remit fines and forfeitures, being as we have seen, confided by the fundamental law
to the executive branch of the government alone, this power is virtually denied to any other department, and can not, therefore, be exercised by the Legislature.'
"Article 3 of the Constitution of Indiana, while too plain to admit of construction, has in several cases been considered by this court, and the law is well settled that constitutional restraints are overstepped where one department of government attempts to exercise powers exclusively delegated to another. Wright v. Defrees, 8 Ind. 298; Waldo v. Wallace, 12 Ind. 569; Trustees, etc. v. Ellis, 38 Ind. 3; Columbus, etc. R.W. Co. v. Board, etc., 65 Ind. 427.
"Section 50, 2 R.S. 1876, p. 382, and section 1724, R.S. 1881, recognize the power of courts to remit forfeitures of recognizances. We are satisfied such power does not exist in, and that it can not be conferred upon the courts by the Legislature. Courts may, from inherent powers or those conferred by statute, set aside judgments forfeiting, or upon forfeited recognizance, the same as other judgments, for fraud, mistake, inadvertence, surprise or excusable neglect, or in proceedings for review. But courts have not, nor can the Legislature confer upon them, authority to grant pardons, reprieves or commutations, nor to remit fines and forfeitures. These powers, under the Constitution, belong exclusively to the chief executive officer of the State, and they can not be exercised, directly or indirectly, either by the legislative or judicial department."
In the case of People v. Brown, Mr. Cooley, who wrote the standard work "Cooley on Constitutional Limitations," while Chief Justice of Michigan, said: "A judge can not by suspending a sentence indefinitely practically pardon a prisoner." The Supreme Court of the United States, through Chief Justice Marshall, in the case of the United States v. Wilson, 7 Pet., 150, says: "The Constitution of the United States gives to the President the power to grant reprieves and pardons for offenses against the United States. As this power had been exercised from time immemorial by the executive of that nation, whose language is our language, and to whose judicial institutions ours bears a close resemblance . . . A pardon is an act of grace proceeding from thepower entrusted with the execution of the laws which exempts the individual from the punishment the law inflicts for a crime he has committed."
This Act of the Legislature authorizes judges, under conditions named, to exempt from punishment men guilty of crime, and is but an indirect exercise of the power to pardon. The sovereignty of the State is in its citizens. They have assembled in convention and distributed their sovereign power between the departments of government, conferring upon each all the powers they deemed necessary and proper, and to maintain the independence of each department and the distinctiveness of its sphere, have declared that no "person or collection of persons, being one of these departments, shall exercise any power properly attached to either of the others, except in the
instances herein expressly provided." The legislative, judicial and executive departments each received from the people that portion of power that the sovereign citizenship deemed necessary and proper to discharge all the functions of government relating to their respective department and no more, and each is sovereign in the exercise of the powers confided to it, each the equal but not the superior of the other coordinate branch of the government. The legislative branch has more extended jurisdiction, and its province is to enact laws for the government and well-being of society, and to make any and all laws wherein they are not inhibited by the Constitution. But further that department can not go, nor can it invade or exercise the powers conferred upon either of the other departments. The Constitution having conferred upon the executive department the power to grant pardons, this Act of the Legislature seeking to confer this power on the district judges of the State is in violation of that provision of the Constitution, and is null and void. There are other features of this law that would, in our opinion, render it void, but we do not deem it necessary to discuss them here, as it would necessitate making this opinion too lengthy.
The law had a humane object, a worthy purpose, and if it were possible under our Constitution to uphold it, we would be glad to do so, but deeming it violative of the provisions of the organic law, we hold that the Act is void, and the court did not err in refusing to submit the question to the jury.
The judgment is affirmed.
Affirmed.