knowledgment of a deed to be recorded in Cali- | under consular act 1803, chap. 62, § 4, providfornia.

EXCEPTIONS by plaintiff to rulings of Dec. 442; Rockwood Y. Wilson, 11 Cush. 226;

If the fence were in such a situation and of such a character as to be dangerous to persons passing along the street in the exercise of due care it became the duty of the defend-placed by the present one, and it appeared ant to take all proper precautions to avoid danger.

fence was put there with the same purpose | prevent trespassing, which could do no harm as the barbed. The common purpose can only unless the trespass itself brought the treshave been to prevent people from taking a passer into contact with it. See Daniels v. short cut across the defendant's grass, and New York & N. E. R. Co. 154 Mass. 349, 13 that is the common sense of the matter. L. R. A. 248; Holbrook v. Aldrich, 168 Mass. Marble v. Ross, 124 Mass. 44, goes, at least, 15, 36 L. R. A. 493; Howland v. Vincent, 10 to the verge of the law. But there the vi- Met. 371, 43 Am. Dec. 442; McIntire v. Robcious stag was an active source of harm, erts, 149 Mass. 450, 452, 453, 4 L. R. A. 519. which attacked the trespasser. Here there Exceptions overruled. was nothing but an inert object, intended to

1.

2.

3.

ALABAMA SUPREME COURT.

Brooks FULLER, Appt.,

υ.

STATE of Alabama.

The parole of a convict is in the nature of a conditional pardon, and within the constitutional grant of the pardoning power to

the governor.

prescribed by law, and, after conviction, to grant reprieves, commutation of sentence, and pardons (except in cases of treason and impeachment)." It is the settled law that this grant includes power to grant condi tional pardons, the condition to be either precedent or subsequent, and of any nature. so long as it is not illegal, immoral, or impos sible of performance, and that a breach of the condition avoids and annuls the pardon. role and avails himself of the liberty which Ex parte Wells, 18 How. 307, 15 L. ed. 421: it confers must do so subject to the conditions Woodward v. Murdock, 13 Crim. L. Mag. upon which alone it is granted to him. 71, and notes (124 Ind. 439); Arthur v The summary arrest of a convict Craig, 48 Iowa, 264, 30 Am. Rep. 395; State who has violated his parole, and his summary v. Barnes, 32 S. C. 14, 6 L. R. A. 743, and return or remandment to servitude or impris-cases cited; State, O'Connor, v. Wolfer, 53 onment under his sentence, are not in viola- Minn. 135, 19 L. R. A. 783, and cases cited; tion of the constitutional guaranties govern- note to People v. Cummings (Mich.) 14 L ing the arrest and trial of criminals. R. A. 285.

A

A convict who elects to accept a pa

(June 1, 1899.)

The parole of a convict is in the nature of a conditional pardon, and within the constitutional grant of the pardoning power to the governor. The power to grant pardons, absolute or conditional, cannot, of course, be taken away from the executive, nor limited by legislative action, but the general assembly may enact laws to render its exercise convenient and efficient. Kennedy's Case, 135 Mass. 48. The legislature of this state has enacted such a law in respect of that de scription of conditional pardons known as "paroles," and this statute is now embodied in §§ 5461, 5462, Code, which are as follows:

PPEAL by petitioner from an order of the Probate Court for Montgomery County denying a petition for writ of ha beas corpus to obtain the release of petition er from custody to which he had been committed for violation of his parole. Affirmed. Fuller was convicted of assault with intent to murder. The governor paroled him under authority of Code 1896, §§ 5461, 5462. He subsequently issued an order reciting that he had received information that Fuller had violated his parole, and directing that he be delivered to the convict depart "Sec. 5461. Governor may Suspend Senment to serve out his term according to law. tence and Parole Convict on Good Behavior. He was thereupon reincarcerated, and he The governor may, whenever he thinks best, filed a petition for his release upon the authorize and direct the discharge of any conground of lack of authority for his recom-vict from custody and suspend the sentence mitment.

of such convict without granting a pardon Further facts appear in the opinion. and prescribe the terms upon which a conMr. John W. A. Sandford, Jr., for ap-vict so paroled shall have his sentence suspellant. pended.

Mr. Charles G. Brown, Attorney General, for appellee.

McClellan, Ch. J., delivered the opinion of the court:

Section 12 of article 5 of the Constitution confers the pardoning power on the governor in this language: "The governor shall have power to remit fines and forfeitures, under such rules and regulations as may be NOTE. As to parole of convict, see also People v. Cummings (Mich.) 14 L. R. A. 285, and note.

"Sec. 5462. Convict Failing to Observe Terms of Parole may be Rearrested and Required to Serve Out Sentence. Upon the failure of any convict to observe the conditions of his parole, to be determined by the governor, the governor shall have authority to direct the rearrest and return of such convict to custody, and thereupon said convict shall be required to carry out the sentence of the court as though no parole had been granted him."

These sections are really not open to construction, and little need be said in their in

terpretation. The parole does not in any making power of the land-provides, also, in wise displace or abridge the sentence. It this instance, for its suspension, and for its merely stops its execution for a time only, ultimate execution, in a given contingency, it may be, or indefinitely, it may prove. It at another and different time, and it is suspends, not destroys. The suspension is equally potent in both respects. And the like that which occurs constantly in the ad- postponing of the sentence in such case is ministration of criminal laws where the de- not merely by convention with the governor. fendant appeals from the judgment of con- but is, by force of a potential statute, well viction. The execution of the sentence is within legislative competency to deal with by the appeal superseded and postponed the execution of sentences imposed upon pending the appeal, and, if the judgment is convicts. It is the law that in such case affirmed, the execution of the sentence there- postpones, under certain circumstances, the upon begins, and continues for the period set execution of the sentence to another time, down originally in the judgment. So the just as it is the law which postpones, upon word is used in this statute, and, upon con- appeal taken, the execution of sentence undition broken, the sentence, which has all til another time. So it has been ruled of a along hung in its entirety over the liberty of similar statute in Massachusetts (Conlon's the paroled convict, is to be executed upon Case, 148 Mass. 168); such is the view of the him "as though no parole had been granted supreme court of Minnesota, expressed in a to him." This is the plain meaning of the well-considered opinion (State, O'Connor, v. statute; and, so interpreted, it involves, of Wolfer, 53 Minn. 135, 19 L. R. A. 783); and necessary consequence, the proposition that in South Carolina a like result is rested upon condition broken, even after the time alone upon the governor's constitutional at which the sentence would have ended but pardoning power (State v. Barnes, 32 S. C. for its suspension, the convict may still be 14, 6 L. R. A. 743, and cases there cited). remanded to custody; that the unserved, and And at an earlier day it was supposed in hence unexpired, part of the sentence-that Massachusetts to be necessary to provide by part which he was released from serving statute that the time during which the conduring the period of durance originally spec- vict is at large under parole should not be ified-may be executed upon him. So the deducted from the unexpired sentence upon his remandment for breach of the condition of the parole, to the end that he should be made to serve beyond the time fixed for the termination of the original sentence. West's Case, 111 Mass. 443. This statute was afterwards amended as indicated in Conlon's Case, 148 Mass. 168. See also, on the general question of the constitutionality of statutes providing for paroling convicts, State, Atty. Gen., v. Peters, 43 Ohio St. 629.

law is written.

That it was competent for the legislature to so provide, we entertain no serious doubt. A parole, like every other pardon, is subject to rejection or acceptance by the convict. He has an unfettered election in that regard, and the executive order is not effective or operative until it has been accepted by him. If he prefers to serve out his sentence, as originally imposed upon him, to a suspension of it by subjecting himself to the conditions But it is insisted that this statute, in sa nominated in the parole, he has the clear far as it undertakes to authorize the govright to do so. But if he elects to accept ernor to determine that the condition of the the parole, and avails himself of the liberty parole has not been complied with, and the it confers, he must do so upon the conditions summary arrest of the convict thereupon by upon which alone it is granted to him. One the direction of the governor, and his sumof these conditions is that his sentence shail mary return or remandment to servitude or continue in fieri and that the governor shall imprisonment under the sentence, is violahave the power to execute it in full upon tive of organic guaranties of jury trial, that him should he forfeit the liberty and im- no warrant shall be issued to seize any permunity conditionally secured to him by the son without probable cause, supported by executive order. That a convict, having only oath or affirmation, etc. This position takes a short time remaining of his sentence, no account of the fact that the person being would make an unwise choice by accepting dealt with is a convict, that he has already a parole, upon onerous conditions, for a been seized in a constitutional way, been breach of which he might, years after, be confronted by his accusers and the witnesses remanded to complete his sentence, affords against him, been tried by the jury of his no argument against the constitutional in- peers secured to him by the Constitution, tegrity of the enactment. That a person and by them been convicted of crime, and cannot by convention with the governor been sentenced to punishment therefor. In become a convict, and that by mere conven- respect of that crime and his attitude before tion with the executive a convict cannot the law after conviction of it, he is not a alter his term of servitude, or the dates at citizen, nor entitled to invoke the organic which it is to begin and end, is no impeach- safeguards which hedge about the citizen's ment of a statute which provides for such liberty, but he is a felon, at large by the alterations, for the suspension of a sentence mere grace of the executive, and not enduring a part of its original period, and its titled to be at large after he has breached execution as to such part at a time beyond the conditions upon which that grace was that fixed in the judgment of conviction for extended to him. In the absence of this its termination. The same power which statute, a convict who had broken the conprovides for the original sentence the law-ditions of a pardon would, if there were no

question of his identity or the fact of breach order of arrest, the wrong man should be of the conditions, be subject to summary taken, he would be entitled to enlargement arrest, and remandment, as matter of on habeas corpus; but there is no question course, to imprisonment, under the original of identity in the case before us. Upon such sentence by the court of his conviction, or determination by the governor, evidenced by any court of co-ordinate or superior juris- the executive order of arrest, the parole is diction, a purely formal proceeding. If the avoided, and the person who has been at person arrested denied his identity with the large upon it at once falls into the category convict sought to be remanded, he might be of an escaped convict, so far as measures for entitled to a jury trial on that issue alone. his apprehension and remandment under the If he denied only the alleged breach of the original sentence are concerned, and he is, conditions of his enlargement, he would not no more than an escaped convict, entitled to be entitled to a jury on that issue, but it freedom from arrest, except upon probable would be determinable in a summary way. cause, supported by oath or affirmation, nor by the court before whom he is brought. But to a trial by jury, nor to his day in court the statute supervenes to avoid the necessity for any purpose. Kennedy's Case, 135 Mass. for any action by the courts in the premises. 48; Conlon's Case, 148 Mass. 168; Arthur v. The executive clemency under it is extended Craig, 48 Iowa, 264, 30 Am. Rep. 395; State, upon the conditions named in it, and he ac- O'Connor, v. Wolfer, 53 Minn. 135, 19 L. R. cepts it upon those conditions. One of these A. 783. is that the governor may withdraw his grace Appellant relies mainly upon the case of in a certain contingency, and another is that People v. Cummings, decided by the suthe governor shall himself determine when preme court of Michigan, 88 Mich. 249. that contingency has arisen. It is as if the Neither the argument nor the conclusion in convict, with full competency to bind him- that case is satisfactory, and its unsoundself in the premises, had expressly con- ness is demonstrated, we think, in the notes tracted and agreed that, whenever the gov-appended to the report of it in 14 L. R. A. ernor should conclude that he had violated 285. the conditions of his parole, an executive order for his arrest and remandment to prison should at once issue, and be conclusive upon him. Of course, if, in the execution of the

The order of the probate judge denying the convict's petition for habeas corpus is in consonance with the foregoing views, and it will be affirmed.

INDIANA SUPREME COURT.

STATE of Indiana, Appt.,

v.

George HOGRIEVER.

(........ Ind.........)

1. An affidavit charging violation of a statute against playing baseball on Sunday where an admittance fee is charged need not set out the name of any person paying such fee.

2.

3.

A statute prohibiting baseball on Sunday where any fee is charged is not

void for uncertainty and ambiguity because it does not describe what is meant by "fee" or by whom it is to be paid.

PPEAL by the State from a judgment of the Criminal Court for Marion County quashing an affidavit charging defendant with playing baseball on Sunday in violation of statute. Reversed.

The facts are stated in the opinion.
Messrs. William L. Taylor, Attorney
General, Merrill Moores, and C. C. Had-

The rule that a penal statute is to be strictly construed should not be unreasonably applied so as to defeat the sover-ley, for appellant: eign will, when that will is expressed with ordinary certainty and is easily intelligible. 4. The constitutional prohibition against class legislation is not violated by a statute prohibiting the playing of base ball on Sunday where a fee is charged, under

a penalty of a fine upon the players. NOTE.-As to constitutionality of statute prohibiting baseball on Sunday, see also State v. Powell (Ohio) 41 L. R. A. 854.

As to constitutionality of Sunday laws in general, see note to Judefind v. State (Md.) 22 L. R. A. 721; also People v. Havnor (N. Y.) 31 L. R. A. 689; Ex parte Jentzsch (Cal.) 32 L. R. A. 664; and Eden v. People (Ill.) 32 L. R.

A. 659.

It is difficult to see how any law which simply forbids "playing any game of baseball where any fee is charged, or where any reward or prize or profit, or article of value, is dependent upon the result of the game, on the first day of the week, commonly called Sunday," can interfere with any man's right of worship or freedom of thought or give preference to any particular creed.

It is an article of faith in the religion of a very extensive religious body that polygamy is a religious duty, and yet it has been absolutely forbidden by the laws of the various states and of the United States, and such laws have been uniformly sustained as