State v. Shumaker

164 N.E. 408, 200 Ind. 716, 63 A.L.R. 218, 1928 Ind. LEXIS 110

Opinions

Travis, J.

Heretofore the respondent in this action was held in contempt of this court (State v. Shumaker [1927], ante 623, 157 N. E. 769), and judgment was rendered that for such contempt he be fined in the sum of $250 and that he be confined on the Indiana State Farm for a period of sixty days. Thereafter the respondent filed with the court his motion for a new trial and a rehearing. And still later a petition was filed by respondent to withdraw his last motion for a new trial and a rehearing. Thereupon October 18, 1928, the clerk of the court issued and directed to the sheriff of this court a commitment. October 19, 1928, the sheriff, by virtue of such commitment, delivered the body of respondent Shumaker into the custody of the superintendent of the Indiana State Farm for confinement, as adjudged by the court. The same day, to wit, October 19, 1928, the Honorable Ed. Jackson, Governor of the State of Indiana, issued a conditional pardon to respondent, to the effect that he be pardoned from serving the sixty days at the Indiana State Farm on condition that he pay the fine and costs adjudged against him. The fine and costs were paid by respondent on said October 19, and thereupon the superintendent of the Indiana State Farm released respondent from custody by virtue of the conditional pardon issued by the Governor, and respondent was set at liberty under and by the authority of the pardon so issued. Thereupon, to wit, October 19,1928, an informátion by the Attorney-General of the state was filed in this cause in this court, informing the court of the action of the Governor attempting to pardon respondent, as hereinbefore set forth, and alleging that the pardon so given was void because of the want of power of the Governor as the chief executive officer of the state, to pardon respondent as attempted here to do, under and by the authority of .the Constitution of the state granting to the Governor the power to pardon. Art. 5, §17, Constitution of Indiana.

Based upon the information, the court issued its peremptory writ to respondent to show cause, if any there be, why execution of said judgment should not be ordered, as prayed in the information, notwithstanding the pardon by the Governor. Respondent having filed his brief on his demurrer, and the time having passed for a response on the merits, we assume that he is standing on his demurrer to the information. The issue therefore thus presented is the only and sole question of the power of the Governor, under the Constitution to pardon respondent, which issue is now before us for adjudication.

In support of the information, the state, by its first proposition of law, proposes that the Governor of Indiana has no power touching pardons simply by virtue of being chief executive, but that whatever power he has to pardon is derived from the Constitution and laws of the state. It is unnecessary to enter into a discussion here in support of this proposition. This court in 1857 considered the proposition and affirmed it. State v. Dunning (1857), 9 Ind. 20. By the authority of the case just cited) the proposition,to the effect that the only power the Governor of Indiana has to grant pardons is that conferred on him by the Constitution as set forth in Art. 5, §17, is confirmed.

It is proposed also by the state that the power to grant pardons, thus conferred on the Governor by the Con stitution, is not an unlimited or absolute power. This is denied by the respondent.

The decisions by some appellate courts upon the question of the power of the chief executive to pardon, evolve from a consideration of the common law and its relation to the formation of a democratic and a republican form of government such as exists in the states of the United States. The government of England under the early common law was an absolute monarchy. The powers incident to sovereignty were independent or self-derived powers, and vested in the king absolute. The nationals under that regime' were vassals, here limited in the sense that they had no spark of inherent sovereignty in them. The king was the sole executive and administrator of his empire. In him was seated the sole judicial power of the government, which was also autocratic. In him reposed the absolute control of the power of legislation, in that he had the absolute power of veto. He was absolute in every sense except the growth of the English Constitution. Starting with the power of the nationals in gaining the rights they did by Magna Charta to the present day, the English government .is not in character like the government of the United States, or the government of Indiana. Under the jurisdiction here in question—the state—all sovereign power is vested in the citizens of the state; and the citizens have the power, by virtue of such sovereignty, to do whatever, whenever they please, except by their own limitation as expressed in the highest law that may emanate from thé sovereign power, the Constitution. In Indiana, the citizens, charged with the knowledge and meaning of any technical words or expressions used by them in wording the Constitution, knew where sovereignty rested under the common law of England. Knowing that, they used apt and special words to differentiate this government from that, and by so doing, instead of reposing all the three major powers of government in one representative of the sovereign, there was a division of the powers into the three major powers of government; and, for fear one power might interfere with another power, unless more particularly specified, it was ordained by that document that the three powers of government should be divided into three separate departments; and that no person charged with official duties under one should exercise any of the functions of the other, except as expressly provided. Art. 3, §1, Constitution. The true interpretation of this is, that any one department of the government may not be controlled or even embarrassed by another department, unless so ordained in the Constitution. Could the Governor pardon every person held in contempt by the General Assembly, that department, when in assembly in the discharge of its duties, might become a howling mob. 2 Story, Constitution (5th ed.) §1503. The Supreme Court is not here arrogating unto itself a supreme position over either of the other two departments of the government. In the exercise of its. functions and duties, it understands that the citizens gave to it certain inherent powers, one of which is to maintain itself free from defamatory, degrading and libelous attack which' debases the character of the court. State, ex rel., v. Noble (1889), 118 Ind. 350, 21 N. E. 244, 10 Am. St. 143, 4 L. R. A. 101. It will not do in answer to say that the sovereign may rest assured that no one of its separate departments of government will intrude upon another department to the extent that it may embarrass such other department in functioning, either to carry out its mandates or to preserve its self respect. The reasoning in the opinion by the Wisconsin Supreme Court, although obiter dictum, upon the question now under consideration, is of interest, and throws much light upon the proposition. State, ex rel., v. Verage (1922), 177 Wis. 295, 187 N. W. 830, 23 A. L. R. 491.

. There is much discussion and dissension between the parties here, as shown by the briefs, upon the all-inclusive meaning of the word “offenses,” as used in §17, Art. 5, of the Constitution, concerning pardons. Reference is made by respondent to cases in other jurisdictions which seem to respondent to hold that the word “offenses” includes any act which might bring upon the actor the obligation to pay a fine and suffer the loss of his liberty for a time designated. By §13 of the Bill of Rights of our Constitution, it is provided that the accused in all criminal prosecutions shall have the right to a public trial by an impartial jury. “Criminal prosecutions” here means, if anything, the prosecution of offenses. The proposition of the right to a trial by jury upon a charge of contempt of court of any character whatever has been settled in this jurisdiction, as well as in many other jurisdictions. Dale v. State (1926), 198 Ind. 110, 150 N. E. 781.

In this jurisdiction, in all criminal cases whatever, the jury shall have the right to determine the law and the facts. §19, Bill of Rights, Constitution. If a charge of contempt of court is to be held an offense, and it be further premised that an offense is a crime, the appellate courts of many different jurisdictions have violated a similar provision in the several constitutions, first,, for the right of a jury trial, and, in our own instance, that the determination of the law as well as of the facts may, at the request of the person charged, be determined by a jury.

Respondent maintains that the case at bar is one of criminal contempt, and that, by virtue of coming under that category, it is a criminal prosecution, and therefore an offense. It has been held many times by this court, and by the appellate courts of other jurisdictions, that certain contempts of court are of a criminal nature. But in no instance has it been shown to this court by respondent that any jurisdiction has held that any character of contempt of court is a crime within the meaning of the Constitution. The differentiation of the character of contempts came by their names by judicial definition, and statutes using the characterization merely adopt the name given by the courts. So that proceedings for contempt of a court are not criminal proceedings in the sense or under the definition as used in the Constitution or as defined by statute. But such proceedings are summary in character, even though presented by information, and are incidental to the proper administration of justice, and the unintimidated and unembarrassed functioning of the court.

It may be unfortunate under the state of the things of government, that this, the highest court in the jurisdiction of the Constitution, must, in some instances, not only pass upon contempt before it, and that finally, but that it itself presents the charge. In this case, however, by virtue of the fiction of the law, the charge is presented by the people themselves, the sovereign authority, by an information. The presentment of such information isnot limited totheAttorney-General. It might have been presented by any one of the millionths parts which go to make up the complete sovereignty; that is, any citizen might prefer the charge. But, in the opinion of the court, the situation presented, which has been characterized by the respondent, is embarrassing to the court. The function of the pardoning power ought to be granted in that it gives vent to an individual, unbiased and separate department of government to function, as he says, by the Constitution. It is the opinion of the court upon this question that the stability of government, as laid out and maintained by the people, is best conducted under the division as made by them, that each department exercises its own delegated powers, and that each department, unless otherwise hindered by the Constitution, exercises such inherent powers as will protect it in the performance of its major duty. Garrigus v. State, ex rel. (1884), 93 Ind. 239; Dale v. State, supra; State v. Shumaker (1927), ante 623, 157 N. E. 769.

The first forceful argument in favor of the proposition that the word “offenses” does not include charges of contempt of courts is the very understanding of the sovereign itself of its own language, because it, through its duly-elected representatives, has declared that crimes and misdemeanors shall be defined and punishment therefor fixed by statutes of this state, and not otherwise. And this definition of crimes in this state was made less than twenty-four months after the sovereign’s delegates in convention had prepared the Constitution ready for submission to the sovereign to either accept or disavow. §2400 Burns 1926. Supported by: Stevens v. State (1886), 107 Ind. 185, 8 N. E. 94; Ledgewood v. State (1893), 134 Ind. 81, 33 N. E. 631; Hinshaw v. State (1919), 188 Ind. 147, 122 N. E. 418; Fitzgibbons v. State (1923), 193 Ind. 526, 141 N. E. 241. Were the contention of respondent to be affirmed, that the charge against him is a crime, and thereby subject to the pardoning power, it must follow in order to be a crime, that it be so defined and declared by legislation. This proposition the courts have repeatedly denied, and -held that the General Assembly is without power to abridge the power of the courts to determine what are contempts against them, and the power to punish therefor. Little v. State (1883), 90 Ind. 338, 46 Am. Rep. 224; Holman v. State (1886), 105 Ind. 513, 5 N. E. 556; Cheadle v. State (1887), 110 Ind. 301, 11 N. E. 426, 59 Am. Rep. 199; Hawkins v. State (1890), 125 Ind. 570, 25 N. E. 818; Dale v. State, supra; Mahoney v. State (1904), 33 Ind. App. 655, 72 N. E. 151, 104 Am. St. 276.

From the foregoing it is held that a charge which prefers a contempt against a court is not a criminal action; that it is not an offense within the méaning of that word in §17 of Art. 5 of the Constitution, which grants to the executive power to pardon; that, by reason of the inherent power of the court to receive a charge of contempt and to try the cause, it has the power to enforce the execution of its judgment, notwithstanding the power to pardon granted to the executive department—the Governor.

Inasmuch as the court is informed through the information in this behalf that respondent has not served any period of the confinement under the judgment of this court, but was permitted by the Honorable Ralph Howard, superintendent of the Indiana State Farm, to go hence, by virtue of the order of pardon by the Governor, it is therefore ordered that the sheriff of this court arrest the body of respondent and, under the order heretofore issued, again deliver him to the superintendent of the Indiana State Farm and make his return to this court thereof; and it is further ordered’ that the respondent be incarcerated at the Indiana State Farm for a period of sixty days, as provided by the judgment of this court, and that a mittimus issue and be directed to the superintendent of the Indiana State Farm, commanding him as such officer to receive and safely keep the respondent Edward S. Shumaker until he has been confined for a period of sixty days, notwithstanding the pardon by the Governor.

Martin, C. J., dissents with opinion.

Gemmill, J., concurs in the dissenting opinion.