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(- Okla. Crim. Rep. - , 220 Pac. 978.) act on the part of the governor, and Criminal law, $ 204 — nullity of unsuch an official act as the law requires authenticated instrument. to be evidenced by a written instru- 5. The instrument in question in ment, to be subscribed by him. this case, purporting to be a pardon, Criminal law, $ 204 effect of ab- signed by J. C. Walton, then governor, sence of seal.
was not authenticated under the great 4. Under Const, art. 6, § 17, provid- seal of the state or registered in the ing that the secretary of state shall office of the secretary of state. Held, keep a register of the official acts of that to be a valid pardon it must be the governor, an instrument purport- authenticated under the great seal of ing to be a pardon, not authenticated the state, and without such authentiby the great seal of the state, is not en- cation such instrument is insufficient titled to be registered by the secre- in law to authorize the discharge of tary of state as an official act of the petitioner from the imprisonment of governor.
which he complains.
APPLICATION by defendant for a writ of habeas corpus to secure his discharge from imprisonment to which he had been committed for alleged manslaughter. Writ denied.
The facts are stated in the opinion of the court. Messrs. Moman Pruiett, W. N. Red- itentiary, who refuses to discharge wine, Victor A. Sniggs, and 0. C. Pat- him. terson for petitioner.
Attached to the petition, and made Messrs. George F. Short, Attorney
a part thereof, is a copy of an inGeneral, and John Barry, Assistant
strument purporting to be a pardon, Attorney General, for respondent.
signed "J. C. Walton, Governor of Doyle, J., delivered the opinion of the State of Oklahoma,” which inthe court:
strument, it appears, is not auThis is an application for dis- thenticated by the great seal of the charge from imprisonment in the state, or registered in the office of penitentiary on the part of Xeno- the secretary of state, or othewise phon Jones.
attested. It is averred in the petition that
The attorney general filed a deon the 7th day of July, 1921, he was
murrer to said petition on the convicted in the district court of ground that the same does not state Muskogee county of manslaughterent to release said petitioner, or to
facts sufficient to authorize respondin the first degree, and was sen
entitle said petitioner to a discharge tenced to imprisonment in the state from the imprisonment of which he penitentiary for a term of twenty- complains. The argument of the five years; that he is now confined attorney general is that the purportin said penitentiary by the warden, ed pardon attached to said petition W. H. Townsend, under said judg- shows upon its face that it has not ment and commitment; that on the been presented to and authenticated 23d day of October, 1923, J. C. Wal- by the secretary of state, or registon, who was then governor of the tered as an official act of the goverstate of Oklahoma, by virtue of the nor, as provided and required under power and authority vested in him, article 6, SS 17 and 18, of the Congranted and issued to petitioner, stitution, and that until the same is Xenophon Jones, a full and complete so authenticated it is not a valid pardon for said offense for which pardon. he is imprisoned, said pardon to It will be observed, as preliminary take effect immediately, and is en- to the consideration of the question titled to his discharge, but that, not presented, that a pardon is an act withstanding this fact, he is unlaw- of grace and mercy fully and illegally restrained of his bestowed by
pardon-effect. liberty by W. H. Townsend, the state
through its warden, in confinement in said pen- chief
chief executive, upon offenders
against its laws after conviction, Such a proceeding, in ordinary casand a full and unconditional pardon es, would subvert the best-estabreaches both the punishment pre- lished principles, and overturn those scribed for the offenses and the rules which have been settled by guilt of the offender; it obliterates, the wisdom of ages. in legal contemplation, the offense “Is there anything peculiar in a itself; and hence its effect is to make pardon which ought to distinguish the offender a new man. Ex parte it in this respect from other facts ? Crump, 10 Okla. Crim. Rep. 133, 47 We know of no legal principle L.R.A.(N.S.) 1036, 135 Pac. 428. which will sustain such a distinc
In United States v. Wilson, 7 Pet. tion. A pardon is a deed, to the 150, 8 L. ed. 640, Chief Justice Mar- validity of which delivery is essenshall said:
tial, and delivery is not complete “The Constitution gives to the without acceptance." President, in general terms, 'the In Knapp v. Thomas, 39 Ohio St. power to grant reprieves and par- 377, 48 Am. Rep. 462, it is said : dons for offenses against the United “It is, in effect, a reversal of the States. As this power had been judgment, a verdict of acquittal, and exercised, from time immemorial, by a judgment of discharge thereon, to the executive of that nation whose this extent, that there is a complete language is our language, and to estoppel of record against further whose judicial institutions ours bear punishment pursuant to such cona close resemblance, we adopt their viction. Though sometimes called principles respecting the operation an act of grace and mercy, a pardon, and effect of a pardon, and look in- where properly granted, is also an to their books for the rules prescrib- act of justice, supported by a wise ing the manner in which it is to be public policy." used by the person who would avail Wharton says: 'Pardon,' in its himself of it.
technical legal sense, is a declara"A pardon is an act of grace, pro- tion on record by the sovereign that ceeding from the power intrusted a particular individual is to be rewith the execution of the laws, lieved from the legal consequences which exempts the individual, on of a particular crime." 1 Whart. whom it is bestowed, from the pun- Crim. Law, 7th ed. § 591a. This ishment the law inflicts for a crime definition is probably the most ache has committed. It is the private, curate and comprehensive, and best though official, 'act of the executive expresses the legal signification of magistrate, delivered to the individ- the word. ual for whose benefit it is intended, The power to pardon is an execuand not communicated officially to tive power, expressly vested by the the court. It is a constituent part Constitution of the state in the govof the judicial system that the judge ernor. The language of the Consees only with judicial eyes, and stitution (art. 6, § 10) is: “The knows nothing respecting any par- governor shall have power to grant, ticular case of which he is not in- after conviction, reprieves, commuformed judicially. A private deed, tations, paroles, and pardons for all not communicated to him, whatever offenses, except cases of impeachmay be its character, whether a ment, upon such conditions and with pardon or release, is totally un- such restrictions and limitations as known, and cannot be acted on. he may deem proper, subject to such The looseness which would be in- regulations as may be prescribed by troduced into judicial proceedings law. He shall communicate to the would prove fatal to the great prin legislature, at each regular session, ciples of justice, if the judge might each case of reprieve, commutation, notice and act upon facts not parole, or pardon, granted, stating brought regularly into the cause. the name of the convict, the crime (- Okla. Crim. Rep. —, 220 Pac. 978.) of which he was convicted, the date shall be called “the great seal of the and place of conviction and the date state of Oklahoma.'” Art. 6, § 18. of commutation, pardon, parole, or The duty of courts in construing reprieve."
constitutional provisions is to give It is to be observed that, as the effect to the intent of the framers Constitution has vested the pardon- and of the people in adopting the ing power in the governor, and same, and, whenever it is possible clothed him with exclusive author- to do so, each provision must be conity to grant, after conviction, par- strued so that it will harmonize with dons for all offenses, except cases all others, to the end that the inof impeachment, the only limitations tent may be ascertained and carwhich have been or can be made on ried out, and effect given to the inthe power are found in the Consti- strument as a whole. In all cases tution itself. Ex parte Ridley, 3 where the meaning is clear and unOkla. Crim. Rep. 350, 26 L.R.A. ambiguous, the question is not what (N.S.) 110, 106 Pac. 549. The Con- was the intention, but what is the stitution deals with the pardoning meaning of the language used. Ex power not as a prerogative claimed parte Crump, supra. by divine right, but as an adjunct Under the Constitution the secreto the administration of justice, rec- tary of state is the custodian of the ognized in all civilized governments great seal of the state, and is reas necessary by reason of the falli- quired to authenticate therewith all bility of human laws and human official acts of the governor.
In tribunals. Generally speaking, the England there is one great seal by granting of pardons is discretionary virtue of which a great part of the in its nature, and this discretion royal authority is exercised. The should be exercised upon public con- appointment of Lord High Chancelsiderations alone. The indiscrimi- lor, or Lord Keeper, is made by the nate exercise of the pardoning pow. delivery of the great seal into his er is a blow at law and order, and is custody. Seals were known and an additional hardship upon society used among the earliest nations of in its irrepressible conflict with antiquity. A striking illustration is crime and criminals.
that of Jeremiah buying the field in This brings us to the question in Anathoth, where he "subscribed the this case as to whether or not the evidence, and sealed it, and took instrument in question, upon which witnesses," much in the same way petitioner claims that he is entitled a conveyance of land is now made. to his discharge, is a valid, effectual Writings under seal were then of pardon without being authenticated great importance; for instance, in under the great seal of the state. the Book of Esther, viii, 8, we read: The question presented involves a "Write ye also for the Jews, as it construction of the following pro- liketh you, in the King's name, and visions of the Constitution:
seal it with the King's ring: for “The secretary of state shall keep the writing which is written in the & register of the official acts of the King's name, and sealed with the governor, and when necessary, shall King's ring, may no man reverse.' attest them, and shall lay copies of Chancellor Kent maintains that the same, together with copies of the object of seals is to give due soall papers relative thereto, before lemnity and ceremony in the execueither house of the legislature, when tion of important instruments, and required to do so.” Art. 6, § 17. not to designate any particular per
"The secretary of state shall be son, and President Pendleton said in the custodian of the seal of the state, Jones v. Logwood, 1 Wash. (Va.) and authenticate therewith all of- 42: “To consider it upon the reaficial acts of the governor, except son of the thing, a seal is required his approval of laws. The said seal to give solemnity to the act." See
1 34 Cent. L. J. 280. When the King them, an attachment without such "does pardon under the great seal, seal is void; the provision of the it has the full effect of the Parlia- statute] permitting amendment of ment pardon.” Holt, Ch. J., in ‘proceedings' in furtherance of jusRookwood's Trial, 13 How. St. Tr. tice not being enough to authorize 186. And “the legislature cannot amendment. by affixing the seal.” change the effect of such a pardon, In Oelbermann v. Ide, 93 Wis. any more than the executive can 669, 57 Am. St. Rep. 947, 68 N. W. change a law." United States v. 393, it was held: "If the law proKlein, 13 Wall. 128, 20 L. ed. 519. vides that an officer shall have an
We have examined all the cases official seal, that his acts shall be accessible bearing upon the ques
certified to under his hand and seal tion under consideration, but find of office, his certificate of verificaonly one directly in point. In Sut- tion of a complaint which is not imton v. McIlhany, an early Ohio pressed with such seal is void.” case, 1. Ohio Dec. Reprint, 235, In Randall Co. v. Glendenning, 19 it is said: “A pretended pardon, Okla. 475, 92 Pac. 158, it is said: issued without the seal, would be a "Under our statute, the only pernullity. It would be a private, and sons authorized to execute an innot an official, act of the governor. strument affecting real estate made When the law requires an instru- by a corporation must be an attorment to be sealed, and it becomes ney in fact of said corporation, or necessary in the court of pleading by the president or vice president to set it up, by either party, the of said corporation, and their sigparty pleading it must aver it has nature must be attested by the seca seal. 1 Chitty, Pl. 348, 349; Van retary or clerk with the seal atSantwood v. Sandford, 12 Johns. tached; so, the signature of two of197."
ficers of a corporation must be In Ætna Ins. Co. v. Hallock, 6 signed to every instrument affectWall. 556, 18 L. ed. 948, Mr. Justice ing real estate; otherwise, the same Miller said: "If the paper here is void, and a void instrument, uncalled an order of sale is to be treat- der the authorities, is not eligible ed .. as a process of any kind of record.” issued from the court, which the In Knapp v. Thomas, 39 Ohio St. law required to be issued under the 377, 48 Am. Rep. 462, it is said: seal of the court, there can be no "A charter of pardon has been somequestion that it was void.
times likened to a deed, in this The authorities are uniform that all sense, that it is of no force until process issuing from a court, which it is delivered and accepted; ..., by law authenticates such process but no case can be found which dewith its seal, is void if issued with- nies that it is matter of record; and, out a seal.”
in truth, it is matter of record of In Overton v. Cheek, 22 How. 46, so high a nature that no averment 16 L. ed. 285, it was held that a can be taken against it." writ of error from the United States In Ex parte Reno, 66 Mo. 266, 27 Supreme Court to a circuit court Am. Rep. 337, it was held that a of the United States, which has no pardon properly attested, authenseal, is void.
ticated, and delivered is irrevocaIn Starkey v. Lunz, 57 Or. 147, ble, and is not void although not 110 Pac. 702, Ann. Cas. 1912D, 783, registered in the office of the secreit was held that "a court clerk's tary of state, where all official acts omission to attach his seal to a writ, of the governor are required to be as required by law, is a remediable registered. irregularity only when the statutes We quote from the opinion as folauthorize such amendment, and
amendment, and lows: "That à pardon or commutasince circuit clerks are required to tion is a mere matter of grace, and, affix their seals to process issued by until this act of clemency is ful
sence of seal.
(-Okla. Crim. Rep. —, 220 Pac. 978.) ly performed, neither benefit nor pose of the requirement. It follows rights can be claimed under it. that without such attestation such Simple intention on the part of the instrument is not entitled to be regexecutive to bestow a pardon con- istered by the secfers no right, and is perfectly nuga- retary of state as
-effect of abtory until the intention may be said an official act of the to be fully completed. This inten- governor. Beyond the foregoing tion may be said to be fully com- constitutional provisions as to regpleted when the pardon is signed by istration and authentication, there the executive, properly attested, is no provision of law in this state authenticated by the seal of the directing what procedure shall be state, and delivered, either to the followed with respect to giving auperson who is the subject of the fa- thentication to purported pardons vor, or to someone acting for him, and paroles. or on his behalf. Whenever these It is said that a pardon partakes things are done, the grantee, or of the nature of a deed of conveydonee of the favor, becomes entitled ance, in that it must possess all the as a matter of right to all the bene- requirements of validity of a deed fits and immunities it confers, and of conveyance at common law, one of which he cannot be deprived by of the essentials being that it shall revocation or recall."
be issued under seal. Under this The power to pardon, except as rule it is essential that a pardon belimited by the Constitution, extends fore delivery must bear the impress to every offense against the state of the great seal of the state of known to the law. The great scope Oklahoma, as required by the Conof power thus conferred is a potent stitution. Art. 6, § 18. This court reason for holding that the several is presumed to know who is the chief safeguards surrounding the exer- executive at any given time. The cise of such powers must be fully court knows judicially that on the complied with.
23d day of October, 1923, the date Under the Constitution the power of the instrument in question, J. C. to pardon cannot be treated merely Walton was governor; that upon his as a privilege. In granting a par- impeachment and removal from ofdon the governor exercises a pub- fice, M. E. Trapp became, under the lic function, and acts by virtue of
Constitution, he being lieutenant his office. It is an official act on
governor, the acting governor from the part of the governor, and such
the 23d day of October, 1923. Howan official act as the -how evi.
ever, we have no doubt the instrulaw requires to be denced.
ment in question was signed by J. C. evidenced by a writ
Walton, then governor. ten instrument to be subscribed by
It follows from what we have said him; it is then the duty of the sec
that under the last above-quoted retary of state to countersign and
sections of the Constitution it is affix the great seal of the state thereto. The object of the constitution
essential to the validity of an inal requirement is apparent.
The strument purporting to be a pardon great seal of the state, bearing a de- that it should be authenticated unvice prescribed by the Constitution der the great seal of the state as the (art. 6, § 35), impressed upon a official act of the governor, and we written instrument bearing the pur- hold that a valid pardon must bear ported signature of the governor of the impression of the great seal of the state, is the only proper authen- the state before delivery and accept
tication that the sig- ance by the grantee; without such -necessity of
nature is genuine, authentication the instrument in seal.
and that the instru- question was, at most, an attempt ment is an official act of the gover- to pardon, and was a mere nullity. nor. This is the object and pur- It is our opinion that, in the absence