Opinion by
Mr. Chief Justice McBride.
1. Beyond the fact that the defendant has not attempted to break into the penitentiary vi et armis, there is nothing to indicate that he has accepted the parole. It was made a part of the judgment, and its conditions in themselves constitute a semi-imprisonment. The defendant may not leave the jurisdiction of the court; he must report his whereabouts to the judge every month; he must submit to the judgment of the court as to his conduct; and he must obey strictly every municipal ordinance of any town in which he resides, and all these under penalty of having his parole revoked and being imprisoned for 20 years in case he violates a single one of the conditions. All these conditions constitute a very serious abridgment of the liberty of a citizen; and, until it is shown that he has accepted them affirmatively, we think that he should not be held to have waived his right of appeal. Had he affirmatively accepted the conditions imposed, a different question would arise; but, under the circumstances, he was inter canem et lupum. Had he accepted by matter of record the parole given him, he would probably have been held to have waived his right of appeal. Had he voluntarily insisted that he be received into the penitentiary, his request would probably have been refused, and the fact that he had so insisted might with equal plausibility have been urged as a waiver of his right of appeal.
2. A parole by the court is not and cannot be a conditional pardon. Under Article Y, Section 14, of the [78]*78Constitution, the pardoning power is vested in the Governor. It is a power with which courts have nothing to do. This also marks the distinction between the case at bar and the case of Odom v. State, 8 Okl. Cr. 540 (129 Pac. 445), which arose upon parole granted by the Governor, and not upon one constituting a part of the original judgment. To adopt the theory of that state in this case would place it in the power of any judge to prevent an appeal by paroling the prisoner. While in most instances it transpires that only guilty men are convicted by juries, yet, so long as appeals are permitted at all, the right to appeal should be open to anyone who does not waive it by some affirmative act.
The defendant, John B. Goddard, was convicted of statutory rape, and sentenced to imprisonment in the penitentiary for a term of from 3 to 20 years, and was paroled on the recommendation of the jury, and he appeals.
Aeeirmed.
For appellant there was a brief, with oral arguments by Mr. Will R. King and Mr. Jay Bowerman.
For the State there was a brief over the names of Mr. Walter H. Evans, District Attorney, Mr. Arthur A. Murphy, Deputy District Attorney, and Mr. Andrew M. Crawford, Attorney General, with an oral argument by Mr. Murphy.
The motion to dismiss is overruled.
Motion Overruled.
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