Stetler's Case

22 F. Cas. 1314, 9 Leg. Int. 38, 1 Phila. 302, 1852 U.S. App. LEXIS 354

• Court: U.S. Circuit Court for the District of Eastern Pennsylvania
• Decided: February 27, 1852
• Status: Published

Opinion

KANE, District Judge.

When this indictment was on trial at the last session of the court, one George Lewis was offered as a witness for the prosecution, and was objected to as incompetent, because convicted of felony; but on the production of a pardon he was allowed to be sworn, and thereupon testified to a fact material in the cause. The prisoner was found guilty, and a new trial having been moved for, it is now contended that George was improperly admitted as a witness.

The facts, as developed by the record, are these: George was tried, at the May sessions of 1850, in this court, on an indictment containing two counts, — the first for unlawfully, feloniously and falsely making, forging, and counterfeiting ten pieces of coin in the resemblance and similitude of the silver coin which has been coined at the mint of the United States, called a half dollar; the second, for unlawfully and feloniously passing, uttering, and publishing ten false, forged, and counterfeit pieces of coin such as were described in the first count. The verdict was a general one of guilty, and on the nineteenth of August, 1850, he was sentenced to pay a fine of-dollars, and to suffer an imprisonment of one year, to be computed from the second day of June preceding.

The pardon was in these words: “Millard Fillmore, President of the United States of America, to all whom these presents shall come, greeting: Whereas, it appears that at the June term, 1850, of the United States district court for the Eastern district of Pennsylvania, Lewis George was convicted of counterfeiting the silver coin of the United States, and sentenced to be imprisoned for the term of one year; and whereas, it has been made satisfactorily to appear to me that the said George is a fit subject for the exercise of the executive clemency: Now, therefore, be it known that I, Millard Fillmore, president of the United States of North America, in consideration of the premises, divers other good and sufficient reasons me therefore moving, have granted, and do hereby grant, unto him, the said Lewis George, a full and unconditional pardon, to take effect from and after the first day of July next. [Seal.] In witness, etc. Done at Washington, this fourth day of June, A. D. 1851, etc.”

The exceptions, as they have been expanded in argument, embrace the following points: (1) That it is not competent in the president to grant a pardon after the expiration of the term of sentence. (2) That the pardon contemplated by the constitution is of offences, not of the offender; and that this pardon is inoperative, because it does not set forth the offence pardoned. (3) That if the pardoning words of the instrument are to be referred by implication to the offence recited in the preamble, the recital is itself indefinite, and variant from the record of conviction.

1.I intimated my opinion on the first point, before the argument closed. I cannot doubt the constitutional authority of the president to pardon an offence, so long as any of its legal consequences remain. I do not enter upon the question, whether it is in the power of congress to attach consequences to a conviction which a pardon cannot remove. There are constitutional views of that question, which are not met in the reasonings of Mr. Hargrave (2 Jur. Arg. 221), nor in any of the cases which recognize the English doctrine. But here the disability was only consequential, not statutory; and I can see no reason for restricting the'president’s power of pardoning to the time during which the convict is undergoing sentence. In very many cases, the consequential disability is the most painful incident on the conviction. In some, the offence, though a grave one in its legal aspect, is morally venial, perhaps involving no turpitude whatever, and calling for a merely nominal sentence. It would be strange if such a sentence were to disqualify forever because it did not allow time to invoke the president’s clemency. For clearly congress could not relieve. Were such the law, a nominal sentence, to be effectively merciful, must bear a relation to the distance between the court and the capitol; and a Californian, to ransom his civil rights, must invoke some months of imprisonment beyond the rightful penance of his crime. But I need not pursue the argument. There is nothing before the court, to show that the sentence of George was complied with, by the payment of the fine, which formed part of it; and, besides the question of law has, I apprehend, been determined by the late Mr. Justice Thompson in U. S. v. Jones [Case No. 15,493],

2. The second point of exception involves in its terms the question of a general pardon, the power to grant such a pardon, and its effect, if granted, on the legal competency of the convict. This power is one which can hardly be regarded as established in England, notwithstanding the numerous dicta in the ancient books (see the remarks of Sargeant Hawkins on the several cases, r. C. bk. 2, c. 37, § 9); and which, in our country, might admit of a less embarrassed dissention under the terms of the federal constitution. It is certain that such pardons have not been granted by the crown for some centuries past, and I am not aware that they have ever been known in the United States. But, at any rate, no question regarding them can arise upon the facts before the court. The pardon here is full and unconditional, but not general. Whatever may be the effect of the preamble reciting as it does a single offence, it must be held to limit, in some degree the general words of the grant.

3. The third exception is better taken. A comparison of the instrument of pardon with the conviction on which it is supposed to operate shows as, it seems to me, a fatal diversity. The pardon speaks of a conviction at “June term” of the offence of “counterfeiting the silver coin” and a “sentence” thereon of “imprisonment.” The record is of a conviction at the “May sessions” of two felonies, — one “forging and counterfeiting ten pieces of coin,” etc.; the other “uttering and passing” them, — on which there is a sentence of “fine” as well as imprisonment. Neither the time of conviction, nor the offences, nor the judgments correspond.

The cases which are digested in Hawkins (ubi supra, § 8, etc.) and in Chitty (chapter 19, p. 770,* 771*), and the concurrent opinion of the commentators on this title of the law, all go to this: That whenever it may be reasonably intended that the king, when he granted the pardon, was not fully apprised both of the heinousness of the crime and also how far the party stands convicted thereof upon record, the pardon is “void.” And this •being so, what are we to say, where the par'don misreeites the time of conviction, or recites rather an impossible time — for we have no June term — and the conviction was in this court; and referring to one felony as its implied subject, and omits another, of which the party was equally convicted, and omits, besides, a portion of his sentence? Is this a case in which it can reasonably be intended that the executive was fully apprised of the crime of the party, or the action of the court upon it?

There is nothing of which we can take hold, to connect the pardon with the conviction, and thus to make them commensurate. We must begin by assuming that “June term” means “May sessions”; next, that the offence of counterfeiting includes the independent felony of uttering, and then that a sentence to fine and imprisonment is sufficiently described as a sentence of imprisonment; and, if either of these assumptions is too broad, there is nothing left for us but an interpretation of the instrument ex visceri-tous suis, without reference to anything beyond. We cannot, by judicial construction, expand the pardon of one felony into a pardon of two; and, unless we do this, the pardon, though it be not void, has no application to the felony of which George was convicted under the second count of the indictment against him. I must therefore hold that the witness, notwithstanding the pardon, was incompetent, propter delictum, and that the prisoner is entitled to a new trial.