text:
    Ex parte RICE.
    (Court of Criminal Appeals of Texas.
    June 18, 1913.
    On Motion for Rehearing, June 27, 1913, and Jan. 21, 1914.)
    1. Pakdon (§ 4) — Right to Pardon — Who Entitled to Exercise.
    A “pardon” is a remission of guilt or an act of grace proceeding from the power intrusted with the execution of the laws, which exempts the individual on whom it is bestowed from the punishment the law inflicts for a crime he has committed, and that power, under our Constitution, may be exercised by the President of the United States and the Governors of the several states.
    [Ed. Note. — For other eases, see Pardon, Cent. Dig. §§ 4-6½ ; Dee. Dig. § 4.

    For other definitions, see Words and Phrases, vol. 6, pp. 5168-5172; vol. 8, p. 7745.]
    2. Constitutional Law (§ 50*) — Departments of Government — Interference.
    One branch of the government cannot interfere with another, and all attempts to do so are void.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 48, 49; Dec. Dig. §
    3. Pardon (§ 4) — Conditional Pardons— Right to Grant.
    The power to grant absolute pardons carries with it the power to grant conditional pardons and to make the pardon contingent upon any conditions, so long as they are not illegal, that the pardoning power desires to impose.
    [Ed. Note. — For other cases, see Pardon, Cent. Dig. §§ 4-6½; Dec. Dig. § 4.]
    4. Pardon (§ 10) — Revocation of Pardons.
    The power to grant pardons does not carry with it the right to revoke them,- and an unconditional pardon, once accepted and acted upon, is irrevocable unless it was procured by fraud.
    [Ed. Note. — For other eases, see Pardon, Cent. Dig. § 23; Dec. Dig. § 10.]
    5. Pardon (§ 14) — Conditional Pardons— Right to Revoke
    A conditional pardon is as absolute an act upon the conditions named as an unconditional pardon, and when granted cannot be revoked by the pardoning power except for a violation of the conditions; and hence the Governor cannot revoke a conditional pardon because after-discovered evidence leads him to believe that clemency was ill-advised.
    [Ed. Note. — For other cases, see Pardon. Cent. Dig. §§ 28-31; Dec. Dig. § 14.]
    6. Constitutional Law. (§ 74) — Judiciary —Power of Judiciary.
    While the judiciary is not entitled to review discretionary acts by the Governor, yet as Const, art. 5, § 6, confers on the Court of Criminal Appeals the power to issue the writ of habeas corpus, and article 1, § 12, declares that that writ shall never be suspended, while article 1, §§ 9 and 19, declare that the people of the state shall be secure in their persons, and that no citizen shall he deprived of his liberty except by due process of law, the Court of Criminal Appeals has power to determine whether the Governor has authority to revoke a conditional pardon merely because he deems it ill-advised and not on account of a breach of the conditions.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. § 124; Dec. Dig. § 74.]
    On Motion for Rehearing.
    7. Bail (§ 45) — Admission to Bail.
    Where the Court of Criminal Appeals found that the Governor was without authority to revoke a conditional pardon merely because he deemed it had been improvidently granted, and the state moved for a rehearing, the relator should be admitted to bail during the pendency of that motion-.
    [Ed. Note. — Eor other cases, see Bail, Cent. Dig. § 146; Dec. Dig. § 45.]
    8. Pakdon (§ 10) — Revocation—Fraud.
    A pardon once granted will not be revoked merely upon allegations that it was secured by fraud, but the fraud must be judicially ascertained.
    [Ed. Note. — For other cases, see Pardon, Cent. Dig. § 23; Dec. Dig. § 10.]
    Appeal from District Court, Tarrant County; Marvin H. Brown, Judge.
    Ex parte petition by D. R. Rice for a writ of habeas corpus. From a judgment denying the writ, relator appeals.
    Reversed, and relator ordered discharged.
    Collins & Cummings, of Hillsboro, and W. F. Ramsey, of Austin, for appellant.
    On the 25th day of May, 1913, the relator sued out a writ of habeas corpus before the district court of Tarrant county, and upon a hearing of the same, on the 27th day of May, 1913, the relator was remanded by said court to the custody of the sheriff of Tarrant county, and he thereupon excepted to the action of the court in so remanding him and gave notice of appeal to this honorable court. The ruling of the trial court was based, according to his statement from the bench, upon a remarkable contention made by the state, and that was that, in the event the relator should be discharged by him, the state could not appeal; but, if he should remand the prisoner, the prisoner could procure a decision from the court, and the court, when he rendered such decision, stated from the bench that it was rendered against his judgment, and that he was sure he would be reversed by this court and that such was his desire.
    On the hearing of the writ, the court announced from the bench that he would no't permit the introduction of any testimony, either in behalf of the relator or the state, except the original pardon and the pretended revocation of -the same, and these two instruments comprise, in its entirety, the statement of facts. He further announced that either side might offer any testimony which they desired to offer and he would exclude the same and approve a bill of exception embodying it. The relator, availing himself of this permission from the court, presented two bills of exception; the first embodying the testimony of Walter Collins and B. Y. Cummings, stating the circumstances under which pardon in this case was procured, and the second bill of exceptions embodying the recommendation of the Board of Pardons, recommending the pardon, together with the exhibits annexed thereto and made a part of said recommendation, said exhibits consisting of a letter addressed by Dr. E. B. Osborne, of Cleburne, Tex., to the Governor, and a letter from Judge W. F. Ramsey to the Governor, both urging the pardon of the relator. These bills of exception appear in the record, and the testimony incorporated in them would have been produced before the court if it had been permitted.
    The state, or, speaking more accurately, the hired prosecutor, availing himself of the offer of the court, has incorporated in the record certain affidavits from relatives of the deceased and citizens of the community wherein the crime was alleged to have been committed, to the effect and to the effect only, that they did not know that an application for pardon was pending until after pardon had been granted; that, if they had known it, they would have protested against the granting of same; and that they, and the people generally, in that community, believed the relator to be guilty. We have nothad sufficient time yet, and as the years are rapidly creeping on us, and as “life is short and time is fleeting,” we fear we shall never have time to ascertain the purpose of the state’s bill of exception, because in it nowhere appears a suggestion that any misrepresentation was made to the Governor concerning the attitude of these people, or a suggestion that fraud or concealment was practiced, or a suggestion that any condition of the pardon had been violated. The record prepared by the state fails to include any word from the Governor that he was imposed upon, and the hired prosecutor was challenged on the hearing of the writ, and again when the record was agreed to and approved, and is now for the third time challenged to procure an affidavit from the Governor to the effect that any material fact was concealed or misrepresented in the procurement of the pardon. On the other hand, the record does contain a bill of exception in which is incorporated an affidavit made by Walter Collins and B. Y. Cummings, to the effect that the original statement of facts, made up and filed in the cause wherein the relator was convicted of murder, was carried by them to Austin, placed before the Board of Pardons and before the Governor, and that the Governor stated to them that it was too voluminous to read, and that they could carry it back home with them, which they did. The record also discloses a bill of exception in which is incorporated a copy of a letter, the original of which is now on file in the office of the Secretary of State, indited by Judge W. F. Ramsey to his excellency, Gov. O. B. Colquitt, in which the attitude of the daughters of the relator and the deceased and the members of the family of the deceased is clearly set forth, and, if their attitude is to be the determining factor in this case, the state must, if it maintains that the Governor was ignorant of such attitude, say that he refused to read the letter written by Judge Ramsey.
    First Proposition: Section 11 of article 4 of the state Constitution confers upon the Governor in all cases, except treason and impeachment, power, after conviction, to grant reprieves, commutations of punishment and pardons, and this power includes the power to grant a conditional pardon, provided the condition annexed to the same is neither illegal, immoral, or impossible of performance.
    Statement: The Governor granted the relator a pardon conditioned that he should not thereafter violate any of the criminal laws of the state of Texas.
    Authorities: Article 4, § 11, State Constitution; Carr v. State, 19 Tex. App. 635, 53 Am. Rep. 395; Snodgrass v. State, 150 S. W. 162, 178, 41 L. R. A. (N. S.) 1144; Ex parte Wells, 18 How. 307, 15 L. Ed. 421; U. S. v. Wilson, 17 Pet. 150, 8 L. Ed. 640; State ex rel. Davis v. Hunter, 124 Iowa, 569, 100 N. W. 510, 104 Am. St. Rep. 361; Arthur v. Craig, 48 Iowa, 264, 30 Am. Rep. 395; 24 Am. & Eng. Ency. of Law, p. 566.
    Second Proposition: Since the Constitution of the state casts the power to grant pardons upon the Governor, it cannot be exercised by any other agency of .the government.
    Authorities: Article 4, § 11, State Constitution ; article 2, § 1, State Constitution; Snodgrass v. State, 150 S. W. 162, 178, 41 L. R. A. (N. S.) 1144; Martin v. State, 21 Tex. App. 2, 17 S. W. 430; State v. Nichols, 26 Ark. 74, 7 Am. Rep. 600; Easterwood v. State, 34 Tex. Cr. R. 400, 31 S. W. 294; People v. Moore, 62 Mich. 497, 29 N. W. 80.
    Remarks: We believe that the rule cannot be stated more concisely than is done in the American & English Encyclopedia of Law, vol. 44, p. 557, and from that we copy as follows: “Since it is a principle of constitutional law that each of the great departments of the government, viz., the executive, legislative, and the judicial, shall in its sphei’e be supreme and independent of the others, and that a grant of general powers to one department constitutes an implied exclusion of the other departments from the exercise of those powers, it is the prevailing weight of judicial opinion that a grant of the pardoning power by the Constitution upon the executive department, of either state or federal government, precludes the legislative department of that government from exercising or controlling that power. In other words, that the pardoning power is solely an executive function and cannot be exercised, limited, or impaired by the Legislature.”
    Third Proposition: The act of the Thirty-Second Legislature, chapter 43, p. 64, known as the parole statute, does not by its terms apply to conditional pardons; but if it be held that it is broad enough to include within its operation the granting of conditional pardons, and to limit and restrain the power of the Governor to grant conditional pardons to prisoners who have been sentenced for a life term, then it must be held to be an unconstitutional infringement of the exclusive right of the Governor to grant conditional pardons.
    Statement: We deem it not improper to say that it was contended by the state on the hearing in the trial court, in substance, that the instrument granted by the Governor to the relator was in effect a parole, and that said instrument was governed by the act of the Thirty-Second Legislature, chapter 43, p. 64, relating to paroles, and that therefore, since the relator was a life prisoner, the Governor had no authority to release him or to grant him a conditional pardon. In other words, it was contended in substance that the said enactment by the Legislature above referred to is a valid exercise of legislative power and destroyed any power theretofore existing in the Governor to grant' to life prisoners instruments similar to the one granted to the relator.
    It will be noted from the statement of facts that the instrument granted relator by the Governor purports upon its face to be a conditional pardon and is so styled by the Governor, the condition of same being stated, and it is nowhere referred to by him as a parole.
    It will be also observed that in granting the relator this instrument, the Governor did not undertake to follow any of the provisions of said act to paroles, the said instrument not purporting to have been granted by the Board of Prison Commissioners.
    Authorities: Acts 32 Legislature, c. 43, p. 64; articlé 4, § 11, State Constitution; article 2, § 1, State Constitution; Snodgrass v. State, 150 S. W. 162, 178, 41 L. R. A. (N..S.) 1144; State v. Nichols, 24 Ark. 74, 7 Am. Rep. 600; all authorities cited under last preceding proposition; Territory v. Richardson, 9 Old. 579, 60 Pac. 244, 49 L. R. A. 440; Ex parte Garland, 4 Wall. 333, 18 L. Ed. 366.
    Remarks: The granting of a pardon is an act of grace, according to all of the authorities, and the source of that power is the sovereign, it is not an inherent power in the chief executive of the state. In England the sovereign is the king, and therefore the act of grace comes from the king. In America, the power rests alone in the sovereign, the people, and they, by their Constitution, have conferred the power upon the Governor. They could have conferred it upon the Legislature, or the judiciary; but, when it is expressly conferred upon either of the three departments of the government, it is taken away from every other department. In Texas the Legislature has no power to limit in any manner the Governor’s right, under the Constitution, to grant a pardon, but can only prescribe rules with reference to his power to remit fines and forfeitures. If therefore it is contended that the Legislature has attempted to in any manner restrict the power of the Governor to grant conditional pardons, the act must be held unconstitutional, in so far as it seeks to place any limitation upon such power.
    Fourth Proposition: The act of the Thirty-Second Legislature relating. to paroles to be granted by the Board of Prison Commissioners upon certain conditions should not be confused with the right of the Governor to grant, under the authority given him by the Constitution, full or partial, absolute or conditional pardon; for there is a marked legal distinction between paroles granted by the managing officers of the prison and conditional pardons granted by the Governor. A parole is merely the permission of the managing officers to run at large upon certain conditions. It is issued under their rules and regulations and subject entirely to their control. It has no effect upon the guilt or innocence of the prisoner. It does not remove his guilt even if fully performed. To define a parole otherwise would make the statute conflict with the plenary power of the Governor to act by way of an absolute or conditional pardon upon the guilt of the prisoner. If a conditional pardon is duly complied with, the man is relieved from the effect of his sentence. He is not subject to the rules and regulations of the Prison Board.
    Authorities: Acts 32d Leg. c. 43, p. 64; George v. Lillard, 106 Ky. 820, 51 S. W. 793, also, dissenting opinion 51 S. W. 1011; State v. Peters, 43 Ohio St. 629, 4 N. E. 81.
    Remarks: We respectfully submit:
    (1) That the parole statute by its terms deals only with paroles to be issued by the managing officers of the prison, giving the prisoner the right merely to go outside the prison, he still remaining in legal contemplation in the custody of the prison officers and that the Legislature made no attempt to abridge the power of the Governor.
    Or (2) that if said act does apply to conditional pardons, then it is void, since it conflicts with the express terms of article 4, § 11, of the Constitution. Prior to the passage pf said statute, it has been held that the Governor had full authority over pardons and could grant absolute or conditional pardons, according to his pleasure, and discretion. If the contention of the state is correct, namely, that the relator’s case is governed by the parole statute, and that, being a life prisoner, he was not entitled to its benefits, and that therefore the act of the Governor was without authority of law, then it must be conceded at once that the Constitution can be repealed by the Legislature. In other words, before the passage of said act, it was uniformly held that by virtue of the Constitution the Governor possessed ample authority to grant conditional pardons, and the court is now called upon to hold that said act has abridged his pardoning1 power, and that now he is limited in its exercise to absolute pardons.
    If this be conceded as correct, then it follows that all of the conditional pardons issued prior to the passage of said statute are clearly void as having been issued without legal authority. It cannot be said that a power granted and exercised by virtue of the Constitution has been lost by virtue of the exercise of the legislative will. To sustain the contention of the state it must be held squarely that the power to grant conditional pardons never existed in the Governor, and to so hold overrules not only the decisions of this honorable court, but those of every state in the Union, and that of the highest court in the land. To this extent must the court go to sustain the remarkable judgment rendered in this case.
    We also call the court’s attention to the fact that the so-called parole statute does not purport to affect pardons. In section 10 thereof, in express terms, it is stated that the act should in no wise abridge the power of the Governor to issue pardons and reprieves. In other words, the Legislature made a distinction between pardons and paroles, recognizing that, if it did not, the act would be void. The state calls upon this court to hold that the conditional pardon issued to the relator is in legal effect nothing but a parole, notwithstanding the lawmaking body expressly disclaimed any effort to control pardons.
    The instrument under which the relator claims his liberty was issued by the Governor, is called by the Governor a “conditional pardon,” is referred by the Governor as an act of clemency, etc., all indicating that in issuing it the Govern- or was exercising the high and exclusive prerogative granted him in the Constitution. It is not signed by the Board of Prison Commissioners, does not purport to be their act, and in no way refers to them or to the parole statute. On the contrary, the Governor states expressly that it is granted by virtue of the authority “given me under the Constitution and law of the state.” Conceding that it is a proper matter of construction as to whether this instrument is a pardon or a parole, then we submit that it must be called a pardon or a nullity, since it does not even purport to be a parole.
    We refer the court particularly to the case of George v. Lillard, 106 Ky. 820, 51 S. W. 793, 1011. In that case the Court of Appeals of the state of Kentucky, in discussing a parole statute of that state very similar to ours, announces the proposition for which we here contend.
    Fifth Proposition: Where the executive authority of the state has issued and delivered a pardon, he is powerless to revoke it, unless same was produced by fraud, or unless a condition of the same has been violated.
    Statement: There is no suggestion in the record that any condition of the pardon has been violated. (See statement of facts.)
    There is no suggestion in the record that fraud was practiced upon the Governor in procuring the pardon, unless the statement of the Governor in his revocation to the effect that he had come into possession of further information would raise such an issue. (See statement of facts.)
    By bills of exceptions Nos. 1 and 2 of the relator, evidence was offered, which, if admitted by the court, would have tended to prove that the Governor was fully advised of all material facts before the pardon was granted. (See transcript pages -.)
    Authorities: Rosson v. State, 23 Tex. App. 287, 4 S. W. 897; Knapp v. Thomas, 39 Ohio St. 377, 48 Am. Rep. 462; Ex parte Powell, 73 Ala. 517, 49 Am. Rep. 71; 29 Cyc. 1569; Ex parte Reno, 66 Mo. 266, 27 Am. Rep. 337.
    Sixth Proposition: Even though fraud had been perpetrated in the procurement of the pardon,_ and even though its conditions had been violated, the instrument would be voidable only, and the same could not be set up in a habeas corpus proceeding, because, to do so, would be a collateral attack upon the pardon, and the only way that a pardon procured under such circumstances could be nullified would be by a direct proceeding brought in a court of original criminal jurisdiction for the1 specific purpose of annulling the pardon.
    Authorities: American & English Ency. of Law, vol. 84, pp. 582; 583; Knapp v. Thomas,. 39 Ohio St. 377, 48 Am. Rep. 462; In re Edymoin, 8 How. Prac. (N. Y.) 478; Ex parte Alvarez, 50 Fla. 24, 39 South. 481, 111 Am. St. Rep. 102, 7 Ann. Cas. 88; State v. Horne, 52 Fla. 125, 42 South. 388, 7 L. R. A. (N. S.) 719; State v. Wolfer, 53 Minn. 135, 54 N. W. 1065, 19 L. R. A. 783, 39 Am. St. Rep. 582; Territory v. Richardson, 9 Old. 579, 60 Pac. 244, 49 L. R. A. 440.
    Seventh Proposition: In this case the condition annexed to the pardon was a condition subsequent, and the burden of proof rested upon, the state to show a breach of the condition.
    Authorities: 29 Cyc. p. 1570.
    Remarks: We respectfully submit that an-inspection of the record in this case will show conclusively that the relator is entitled to his discharge. The question for this court to consider is not, as was contended before the trial court, as to whether a horrible murder had been committed. The granting a pardon presupposes guilt and its effect is to wipe away the stain, and, so far as this application is concerned, it might be conceded that the relator murdered his wife, although the expert witness, without whose testimony he could have not been convicted, piteously calls to the Governor to liberate the relator because he says he does not now believe him guilty, has never so believed, and that his testimony was. distorted by the prosecution. Twice the presiding judge of the court refused to assent to the af-firmance of the conviction. The conviction was had upon circumstantial evidence. Neither is it proper for this court to consider the fact that protest has arisen in the community in Johnson county, where the supposed murder was committed; but we believe, even if the court holds that the pardon can be attacked in this character of proceeding, the only proper questions to be determined are: First, did the Governor have the power to grant the conditional pardon? Second, was fraud perpetrated in its procurement? Third, has its condition been violated? If it shall be answered that he-had the power to grant the pardon, that fraud was not practiced upon him, and that the condition of the pardon had not been violated, in our judgment it becomes the duty of this court to discharge him. Shall it come to be true, in this state, that the liberty of the individual may be played with as a toy by the Governor?' Shall he be permitted to determine and legally declare a man entitled to his liberty on one day and then on the next, because, and only because, of protest on the part of those who had prosecuted the prisoner, destroy the liberty of a citizen? We do not believe, as long as our courts are composed of judges with clear heads and brave hearts, that Governors can play hide and seek with liberty in this manner.
    We respectfully submit that the courts in every state in the union, as well as the United States Supreme Court, and the English courts, without exception, maintain the propositions for which we contend in this case, and We respectfully ask the court to reverse the action of the trial court and again confer upon the relator the liberty which has been justly his from the date of his acceptance of the conditions of his pardon.
    We desire, in closing our remarks, to give credit to- C. L. Black, Esq., of the Hillsboro bar, for furnishing us with many of the author-itíes cited in this brief. We are indebted to him for bis assistance, which has been of great value in ascertaining the law of this case.
    C. L. Black, of Austin, for appellant.
    O. E. Lane, Asst. Atty. Gen., John Baskin, Go. Atty., of Ft. Worth, and S. C. Padelford, of Cleburne, for the State.
    The honorable district judge, on the hearing of said habeas corpus proceeding, held that the authority was legal and sufficient, and remanded the relator back into the custody of the sheriff. Prom this judgment the relator has appealed to this court, and contends that from the face of the proclamation, order, and writ of the Governor, the Governor possessed no authority to order the arrest of the relator, as shown by the proclamation itself, but the court held that the proclamation was sufficient authority, and, being legal and regular ip this collateral proceeding, the question as to whether or not the Governor had sufficient evidence to revoke the conditional pardon, and to issue said proclamation, could not be inquired into in the collateral proceeding of the habeas corpus, as the Governor was the sole judge as to whether or not he was in possession of sufficient facts and evidence to revoke the pardon and issue the proclamation and order of arrest; that the discretion rested with the Governor to revoke this pardon, and, the Governor having exercised this discretion, the judge, on trial of the habeas corpus, could not control or supervise, arrest or set aside the judgment and discretion of the Governor, exercised under the authority reserved to the Governor in the conditional pardon. The court also held that on the face of the pardon sufficient facts were shown, or sufficient facts failed to be shown, such as to authorize the Governor to revoke said pardon upon the subject of misinformation. If any of the following propositions are correct, then the district judge did not err in remanding the relator into the custody of the sheriff.
    ' First: Although the Oonstitution of this state, unreservedly, unqualifiedly, and without any limitation or reservation whatsoever, delegates to and confers upon the Governor the exclusive and unlimited power over the subject of pardons, under such a power as thus is conferred upon the Governor, by section 11, art. 4, of the Constitution of this state, some of the courts hold that still the Legislature has authority to regulate the method and to control the Governor in the means or method by which he can exercise this power, so conferred upon him by the Oonstitution, of pardons. This court, in the case of Snodgrass v. State, 150 S. W. 162 et seq., 41 L. B. A. (N. S.) 1144, holds that the law passed by the Legislature, conferring the power upon the district court to parole prisoners confined in the penitentiary, was in effect conferring the power upon district courts to grant a conditional pardon to convicted criminals, and that the Legislature could not take this power from the Governor and confer it upon the court, but the Legislature has, in title 100, c. 2, art. 6089 to article 6095, regulated the patroling or granting to prisoners a conditional pardon, which parole under said law, in accordance with the decision of this court, is in fact but a regulation of the conditional pardon of prisoners. If the Legislature has authority to regulate the Governor in the method of granting conditional pardons, and if the act of the Legislature as merely a regulation is constitutional, then the Governor, under said act of the Legislature, had no power or authority to grant the conditional pardon in this case, because the said act provides that no person who has been convicted for murder in the first degree, and given the life sentence, can be paroled — that is, granted a conditional pardon— until and after such prisoner has been confined in the penitentiary for 15 years, and, as is shown, the relator, D. B. Bice, was convicted and his punishment assessed at life confinement, and he had only been confined in the penitentiary for the period of five years and six months at the time the conditional pardon was issued, so, if the Legislature had such power to pass said regulatory law, then the Governor’s conditional pardon purported to have been issued in this case was contrary to the law and was void, and the sheriff rightfully had the prisoner in his custody, and the judge did not err in remanding him into the custody of the sheriff. If your honors will examine the decisions of Massachusetts and a few other states, on this subject, you will find that they hold that the Legislature can pass law reasonably regulating the act of the Governor under such a Oonstitution as ours.
    Second: There is quite a contrariety and some conflict in the decisions of the various courts on the subject of pardons, which arises in most instances because of the different views taken by the different courts of the nature and character of a pardon, and also because of the nature and the character of the particular pardon, as shown by the terms of the pardon under consideration by each court. Some of the authorities hold, especially the one principally relied' upon by the relator, to wit, the Knapp Case, in 39 Ohio St. 377, 48 Am. Bep. 462, that a pardon is in the nature and is in effect a contract. It is compared to the judgment of a probate court in appointing a guardian, and also compared to a deed or a patent to land, or a charter issued to a private corporation, which all the courts hold is in law contracts. If such a nature or character is given to the pardon, and if the Constitution does not confer upon the Governor full and absolute power with reference to pardons, and if the pardon is an absolute, unconditional pardon, then and only then is the Knapp Case good law. The same idea is advanced in People v. Moore, 62 Mich. 496, 29 N. W. 80, which is also relied upon by the relator; also, the decision in Rosson v. Stehr, 23 Tex. App. 287, 4 S. W. 897, from this state — which is an absolutely unconditional pardon — is also relied upon by the relator. This court, in the case of Snodgrass, 150 S. W. 162, 41 L. B. A. 1144, adopts the usual and general opinion, which is adopted by most all of the courts and authorities as to the nature and character of a pardon, which is that it is merely a matter of grace; that it is a gracious gift on the part of the Governor, from the people of the state; and that no contractual relationship arises by virtue of the agreement between the Governor and the prisoner. It is but the exercise on the part of the Governor of the Christ function of government, in which all authority proceeds from the giving power, and the recipient has naught to do but to accept. The pardoned criminal, by the act of acceptance of the pardon, by all of the authorities, admits and confesses his guilt of the crime, for the conviction of which the pardon was issued. The relator in this case was convicted of murder in the first degree, by poison, and given a life sentence, and by the issuance of a pardon is the only one who received any benefit whatsoever arising from the pardon. By the conviction of a most heinous crime, he has lost his citizenship and his liberty during the whole period of his life, and possessed no legal rights appertaining to citizenship whatsoever, because he forfeited them by his violation of the law of the land for which he was convicted, and in his act of acceptance of the pardon admits and confesses his guilt. The authorities go back to the old common law in arriving at the nature and character of a pardon. According to the great weight of authorities, the President of the United States, by the Oonstitution of this nation, is granted solely and alone the pardoning power, and, by the Constitution of this state, the Governor alone is granted the pardoning power, and, under all of the authorities, this pardoning power so conferred by the people of the United States upon the President, and by the people of this state upon the Governor, is the same power and jurisdiction which was possessed by the king of England, from which country we derive our laws. Originally, the king of England possessed legislative, judicial, and executive powers; but, as the nation grew, he was unable to perform the function of a judge, and consequently delegated his judicial authority to the courts created by him, and in the course of time Parliament assumed the legislative functions of the government of England, but the king retained unto himself all executive power, and especially all power and prerogative over the subject of pardon. According to Blackstone, vol. 4, p. 401, it is laid down as a law that the prerogative of pardon belongs to the king; that he could' issue an absolute, unconditional pardon, but it also provides: “A pardon may also be conditional; that is, the king may extend his mercy upon what terms he pleases, and may annex to his bounty a condition either precedent or subsequent, on the performance whereof the validity of the pardon will depend, and this by the common law.” Our state has adopted the common law, and in the particulars alone where it has been modified by the statute, but the Constitution of this state, which is above the statute, expressly and unreservedly grants and confers upon the Governor of this state the prerogative and the power and authority entirely over the subject of pardons. Again, when our republican government was formed, the people by their Constitution divided our state government into three departments, the executive, the judicial, and the legislative, and, according to constitutional law, wherever the Constitution expressly delegates an authority or expressly regulates a subject, or expressly confers upon any department the authority over any subject, such express constitutional provision limits and inhibits the other departments of government, or other governmental agencies from in any way controlling or interfering with the exercise of such authority so expressly conferred. The subject of pardons in our system of government has always been considered as belonging to the executive department; but, in order that there may be no doubt or question on this subject, our Constitution not only delegates to the Governor of this state all executive authority, but in section 11, art. 4, expressly, and without limitation or reservation whatsoever, delegates to and confers upon the Governor the sole and exclusive power and control over the subject of pardons. This, being an express delegation of power to the Govern- or, is an implied prohibition and limitation upon the other two departments of government, and prohibits them in any way to interfere with or control the Governor in the exercise of this authority, thus expressly conferred upon him by the Constitution.
    This court has laid down and fully established the above principles in the Snodgrass Case. In that case, which is one of the most thorough and complete investigations and discussions of this question anywhere found in the books, it is settled that the Legislature has no control whatsoever over the power of pardons, and cannot delegate to the judiciary, or any other agency, any authority over this subject, because the Constitution — the act of the people — has expressly and unqualifiedly delegated this jurisdiction to the Governor, the executive department of this state. If the Legislative then confers upon the judiciary, as stated above, any supervisory power over this subject, conferred upon the Governor, then the Governor must exercise it in accordance with such supervision of the Legislature, and, as stated above, if the Legislature can control, and if the Legislature has prescribed the method, then this pardon is void, .because the Governor has violated the prescription of the Legislature; but if this coutt 'holds that the Legislature cannot control the Governor, as it has held, then how or where
    can the judiciary obtain any power to control or supervise the Governor in this matter? If the legislative department cannot confer upon the judicial department any authority to control the Legislature, how can the judiciary power assume a power which cannot be conferred upon it by the Legislature? That is, in the Snodgrass Case, this court has expressly decided that the Legislature cannot confer upon the judiciary or any other agency any power over the subject of pardons, for the simple reason that the whole power has been by the Constitution conferred upon the Governor.
    This court, in the case of Martin v. State, 21 Tex. App. 1, 17 S. W. 430, holds: “The Constitution gives the Governor the power to grant pardons, and this power is beyond the control of the judiciary. Whatever may have been the reason for granting the pardon, the court cannot decline to give it effect, if it be valid on its face.” It is also said by this court in the Easterwood Case, 34 Tex. App. 400-410, 31 S. W. 294, 296: “That this power of the Governor to grant pardons is supreme, and beyond the reach of legislative limitations.” It is held that the courts cannot go beyond the pardon to inquire into the regularity of the Governor’s proceedings in granting it, nor can they inquire into the reason why the Governor granted it, because, the absolute power having been conferred upon and vested in the Governor to grant a pardon, neither of the other two departments of government can question or annul or control the Governor in the exercise of this power. As is shown above, in the quotation from Blackstone’s Commentaries, the king can extend his mercy upon what terms he pleases, and can annex to his bounty any condition which seems best to him, so that the condition be not illegal or immoral. This question of the power of the Governor to grant a conditional pardon and attach what terms he pleases thereto is'held in a long line of well-considered and well-reasoned decisions. Our own court, by a majority decision, in the case of Carr v. State, 19 Tex. App. 663, 53 Am. Rep. 395, lays down the fol-, lowing doctrine: It holds that the Governor can issue and grant a pardon upon condition, and, in considering such a pardon, lays down the following principle: “Under the conditions of this pardon the taint of the prisoner’s original crime clings to him like the shirt of Nessus as long as life lasts, and its punishment, like the sword of Damocles, is kept continually suspended over him. Such a pardon cannot restore a convict’s competency as a witness. He is simply a ticket-of-leave man — with unrestrained liberty so long as he behaves himself, or so long as the Governor may not determine that he has committed some misdemeanor.”
    A leading case, and one of the best-reasoned cases on this subject, is that of Re Houghton, 49 Or. 232, 89 Pac. 801, 9 L. R. A. (N. S.) 737, 13 Ann. Cas. 1101. In that ease, the authority upon this subject, is fully discussed and distinguished by the learned Chief Justice of the Supreme Court of Oregon, and the doctrine and principle is laid down that where the Governor grants a pardon' upon a condition, and reserves to himself the power to revoke that pardon when satisfied that the condition has been breached, that the sole power of judging of the breach of that condition rests and resides with the Governor, and his decision and discretion is final. We ask your honors’ especial attention to the consideration of this case, which is also reported in 9 L. R. A. (N. S.) 738. This same doctrine is enunciated in the leading case of Arthur v. Craig, in 48 Iowa, 264, 30 Am. Rep. 395. It is also fully established in the case of Woodward v. Murdock, 124 Ind. 439, 24 N. E. 1047; also, in the case of State v. Hunter, 124 Iowa, 569, 100 N. W. 510, 104 Am. St. Rep. 361. The Supreme Court of Alabama also establishes the same doctrine.
    ’ There are three kinds of conditions which may be and are sometimes attached to agreements,but in effect there are but two conditions which may be attached to agreements: A condition precedent, a condition concurrent, or a condition subsequent. There may be a condition precedent without being concurrent, but there are conditions precedent and concurrent. The conditional pardon which was issued by the Governor contains both or all of these conditions. It contains a condition precedent and concurrent, and a condition subsequent. It provides that the relator'must conduct himself as a good citizen, and at the time ho accepted this pardon he must be conducting himself as a good citizen at said time, and must thereafter continue to conduct himself as a good citizen in order to keep alive and to keep into effect this pardon. That is, this pardon was granted to the relator upon the condition of good conduct. This is a condition precedent and con-ciu-rent. It begins with the acceptance of the pardon, and it continues concurrently during the whole life of the pardon, if the pardon is permitted to live as long as the relator; that is, it has in it a condition precedent and concurrent, and, in order for this pardon to be good and to remain good, the relator must have continuously from the time of its acceptance conducted himself as a good citizen. But it not only has this condition, but it has a condition subsequent; that is, he must not again violate the laws of the state, and the Governor expressly reserves in this conditional pardon the express power to revoke this pardon in his discretion. That is, the Governor reserves unto himself the express power, upon his discretion or at his discretion to declare this pardon at an end, should he judge at any time that the relator has violated the condition precedent and concurrent, or rather has not forfeited the condition precedent and concurrent, or has violated the condition subsequent. That is, the Governor reserves the discretionary power unto himself to declare the conditions of this pardon violated, and a revocation of this pardon rests alone and rested alone in the discretion of the Governor. There was an obligation upon the relator, which was a precedent and concurrent obligation, that his conduct and behavior must in the judgment of the Governor be good, and the Governor reserves in his discretion the authority and power to pass his judgment upon the kind and character of the conduct of the relator, and the Governor having this power thus expressly reserved to him to declare this pardon revoked at his discretion, and reciting in the pardon that after it had been granted he had heard other facts and evidence which, in his judgment, made the relator not a suitable person for executive clemency at the time of the revocation of the pardon, and because the hearing of this other testimony which, in the judgment of the Governor rendered the relator not a good citizen, or a person who was conducting himself as such good citizen, the Governor in his discretion, under this power, had full authority to revoke this pardon, and having done so, and having the power to do so in his discretion, neither the legislative department nor the judicial department of this state has any authority to invade this discretion of the Governor, and to set aside or to render it null and void, because it is a universal principle of law that neither the legislative nor the judicial department can control the discretion and judgment of the executive, when that judgment and discretion is exercised under and in accordance with law. The courts cannot by injunction or by mandamus or by habeas corpus supervise or control the discretion of the executive, when that discretion is conferred upon him by the Constitution. On this subject, we call your honors’ attention to a few of the cases, as we deem it unnecessary to go into an extensive citation of authorities, because there can be no question as to the position assumed by the state in this regard. One of the clearest statements of this law is laid down by the Supreme Court of North Carolina in the ease of In re Sultan, 115 N. C. 57, 20 S. E. 375, 28 E. R. A. 294, 44 Am. St. Rep. 433. In that case it is held that, if the court has any doubt as to the authority of the Governor to do a certain thing, the court must resolve that doubt in favor of the Governor, and, wherever the Governor possesses a discretion to do an act, the courts are absolutely powerless to supervise or control that discretion. This question is also fully discussed in the leading case of H., T. & R. B. Ry. Co. v. Randolph, 24 Tex. 317. We call your honors’ attention also to Black on Constitutions (3d Ed.) pp. 91, 94, 96. Also on the subject of Pardons, on page 323. Hr. Black, on this page in this leading work, states that in some of the states it is held that a convict cannot, on mere order of the Governor, be arrested and remanded to suffer the original punishment because of an alleged nonperformance of the condition, but he is entitled to a hearing before a court and an opportunity to show that he has performed the condition of his pardon, or that he has a legal excuse for not having done so, but the general rule is that it rests with the Governor alone to determine the fact of a breach of the condition, and to order the rearrest of the convict. The author cites the authorities sustaining both of the above propositions; but, if you will examine the authorities which hold that the Governor cannot revoke the pardon, it is in cases where the pardon is absolute and unconditional, or in a conditional pardon where the Governor has not reserved the right to revoke it, as he has in this case, but, in every instance where the Governor has reserved the express power to revoke a pardon, the courts have •held that he can exercise this power, and that the courts cannot call into question his judgment in the exercise of this power. These authorities are reviewed in the case of In re Houghton, supra.
    It is another proposition of law that wherever the Governor or even an inferior administrative body has power to do a certain thing, and that they have the authority to exercise judgment or discretion in the performance of that power, the courts cannot by habeas corpus, mandamus, or injunction control the power even of the inferior administrative agency. Take, for instance, a grand jury. The law requires a grand jury to hear the evidence and to return an indictment upon the evidence, and to indorse upon the back of the indictment the names of the witnesses who testified; yet, although a grand jury is but an existing agency of a court, still, if a grand jury should find an indictment without any evidence whatsoever, the court has no power to release a prisoner upon showing the fact that the grand jury heard no evidence in finding the indiefment, because the law invests the grand jury with a discretion and judgment in the finding of the indictment, and although it is an inferior agency to the court, yet the courts cannot inquire into or control in a habe-as corpus proceeding, the discretion and judgment of the grand jury in finding the bill, and this same principle runs through all our law and ramifies every department of our government.
    The Governor in this case had as much authority to revoke this pardon under the condition as set forth therein as he had to grant it originally, and, if your honors will examine the different conditional pardons which have been' passed upon by the courts, we venture the assertion that you will not find any one where a broader or a more unlimited discretion is left to the Governor to revoke it than the one under consideration. It leaves it altogether within the discretion of the Governor, and if this court could not in any way control the Governor ir. his power to grant the pardoUj he having reserved the same power to revoke it, this court is as powerless to inquire into Ms action of revocation as it has to inquire into his power to grant it; having the same power to revoke which he had to grant, and having exercised the power to revoke, it is beyond the reach of this or any other court, and this is also a universal principle of law that wherever the agency exercising an authority has the power to exercise it, wherever the Governor has the power to perform a certain act, on a habeas corpus, mandamus, or injunction proceeding, the court can only look to the power and not to the evidence upon which the Governor exercised that power. In this case, the Governor had the power, and upon the face of the proclamation and writ, he shows that he exercised that power, and that he exercised it under the discretion reserved in the conditional pardon, and, having done so, this court' of habeas corpus cannot set aside the action of the executive department of this government when the action of the executive department is exercised under an express power conferred upon him by the Constitution of this state.
    The granting of a pardon by a Governor is merely a gracious gift or donation from the people, by and through the agency of the Governor, and, as any other pure and simple gift, it does not become in any way binding until and unless it is absolute, delivered and accepted by the donee. This is the same as if one individual would make a gift or donation of a piece of personal property to another. If the gift is absolute, if it has been delivered and accepted, then the title to the property passes; but if the gift is conditional and depends for its validity upon the continual performance on the part of the donee of a concurrent condition precedent, such as the present pardon, it only continues valid and only permits the party to have his liberty on the continuous good conduct of the prisoner. It is nothing but a parole by the Governor on good behavior. A conditional pardon, as this court in the Snodgrass Case decides, is what the Legislature calls a parole on good behavior and, if the good behavior lasts a certain time, then the parole ends and ' the prisoner is discharged, but in this case, the prisoner being sentenced for life, this conditional pardon or parole upon good behavior lasted until the death of the prisoner, unless it was revoked by the Governor. The continuing validity of this conditional pardon depends upon the continuing affirmative acts of the prisoner; he must continuously affirmatively conduct himself as a good citizen. That is, he must continuously perform a condition precedent, in order to continue the validity of this gift. If he does not, the continuing conditional pardon is breached and is at an end, and the validity of this continuing pardon being based altogether upon the continuous affirmative performance, or the condition precedent by the prisoner, was subject to be revoked by the Governor, should he determine within his discretion that the condition had been breached, and that the prisoner had not continuously conducted himself as a good citizen, and, the prisoner ■having accepted this pure gift upon this condition of the Governor, it vested in the Governor absolute power to revoke it at his discretion, and, having exercised this discretion, the district judge of Tarrant county had no power to supervise, control, or annul this discretion of the Governor. As Judge White states in the Carr Case, the prisoner was as a ticket-of-leave man, or, as is stated in the Houghton Case, the prisoner in the hands of the Governor was as a principal in the hands of his surety, the surety having a string tied to the principal, with power at any time to draw him in. The Governor in this case held in his hands continuously a leash attached to prisoner, and reserved the power at any time to draw the prisoner into the penitentiary at his discretion. The Governor in this case occupied the same position that a court does with reference to a judgment rendered during the term of the court; when a judgment has been rendered, the court has the judgment within his breast during the whole of the term, and the law authorizes the court on a motion for a new trial for certain grounds to set aside the judgment and grant a new trial. Yet the court during the whole of the term can set the judgment aside, although the grounds set forth in the motion may not be established or proven to be true. That is, the law gives to the court during the term the absolute discretion- of setting aside a judgment, and no one can complain; so it is with this pardon. The Governor reserved in the pardon the same power over the pardon as the law confers upon a trial court over the judgment during the term. This is as near an illustration of the power reserved by the Governor in this pardon as can be given.
    The pardoning power is an executive power, and it is so held by all of the authorities, except perhaps an Arkansas decision. Mr. Black, in his work on Constitutions, says that the pardoning power is exclusively an executive power, and does not belong at all to the judiciary ; but the Constitution in this case having expressly and wholly and unqualifiedly delegated and conferred upon the Governor the exclusive and uncontrolled power over the subject of pardons, the Constitution makes it an exclusively executive power, and, it being an exclusive executive power, it is also a well-established principle of constitutional law that, whenever power or jurisdiction over a subject-matter has been in unlimited terms delegated to any particular department or agency, that department or agency is given all of the necessary implied powers to fully carry into effect and to execute the general power conferred upon it. Consequently, when the Constitution confers upon a Governor the exclusive general power of pardons, it gives unto the Governor all regulatory power which might be necessary to effectually execute this general power. If the Legislature cannot legislate on this subject, as this court has held, if the courts have no jurisdiction over it whatsoever, then the Governor has all of the governmental authority and jurisdiction; that is, of the legislative, executive, and judicial authority over the subject of pardons.
    The Governor wrote this pardon, and couched it in such language as he desired, and the relat- or accepted the pardon with all of the conditions therein; the Governor has construed the meaning of the language in this pardon which he wrote. He reserved the discretion to revoke it. He has exercised that discretion, and he having the jurisdiction and the power to issue the conditional pardon, and he having the power to revoke it at his discretion, all of this power having been conferred upon him by the people in their Constitution, the judiciary has no authority by habeas corpus to supervise or control this jurisdiction so conferred upon the Govern- or, and the district judge did not err in so holding. State v. Hunter, 124 Iowa, 569, 100 N. W. 510, 104 Am. St. Rep. 361; Fuller v. State, 122 Ala. 40, 26 South. 146, 45 L. R. A. 502, 82 Am. St. Rep. 1; Owen v. Smith, 89 Neb. 596, 131 N. W. 914; Black on Interpretation (2d Ed.) p. 30.
    Third: As the granting of a pardon is a mere gift or donation, it was held at. common law that if the king was not fully informed as to the facts surrounding the prisoner at the time of a pardon, if he was misinformed, and had he been informed of all of the facts, he would not have granted it, then the king had the power to revoke even an absolute and unconditional pardon. The Governor in this revocation states that he was not informed of all of the facts at the time that he granted this pardon, and consequently thereafter having learned other facts which showed that at the time of the revocation the relator was not deserving of executive clemency, and was not such, a man as should be turned loose upon the public, revoked this pardon. At common law, the pardon must state exactly the crime and the nature and the character of the crime, for which the pardon was issued. In this case, the crime was murder, by poison; the murder of his wife. This is not stated in the pardon; there are other facts that the Governor says that came to his 'knowledge after this pardon was granted, and such being shown by the face of the pardon, under the common law this pardon, even if it had been an unconditional one, was subject to revocation by the Governor.
    Fourth: The testimony that was sought to be introduced as shown by the bills of exception was inadmissible because the same was an attempt to show that the Governor did not act upon full and sufficient testimony, and it attempted to show that the Governor may not have been misinformed of certain facts. All of this testimony is hearsay and was clearly inadmissible for the purpose of setting aside and attacking the judgment of the Governor in revoking this pardon.
    We respectfully ask that the judgment of the district judge be in all things affirmed.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

      For other oases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HARPER, J.

In this case appellant had been convicted in the district court of Hill county, Tex., at the March term of the court in 1907, and sentenced to imprisonment in the penitentiary for life. After serving about 5 ½ years of the term, the Governor issued him a conditional pardon, which, omitting the formal part, reads as follows: “Now, therefore, I, O. B. Colquitt, Governor of Texas, feel constrained to grant the said D. R. Rice a conditional pardon, and I do by virtue of the authority vested in me by the Constitution and laws of this state, hereby, for the reason specified, grant the said D. R. Rice a conditional pardon from said conviction and sentence passed upon him by the district court of Hill county, the condition being that if this pardon is accepted by the beneficiary, he must conduct himself as a good and law-abiding citizen and not again violate the laws of the state before the expiration of the time for which he was sentenced; otherwise, this pardon is subject to be revoked at the discretion of the Governor, and he, the said D. R. Rice, may, by order of the Governor of Texas, be again taken into custody by the proper officers of this state and taken to and confined in the state penitentiary until the end of his sentence.” On the 20th day of May of this year appellant indorsed on said pardon his acceptance of it on the terms and conditions named therein, and was released from prison; the acceptance reading: I accept this pardon on conditions above set forth, this the 20th day of May, 1913. D. R. Rice.” Thereafter; the Governor, on the 23d day of May, issued a proclamation revoking, canceling, and annulling the conditional pardon, ordering the rearrest and confinement of relator in the penitentiary; the revocation reading as follows: “Be it further known, that since the said conditional pardon was granted as aforesaid, .further evidence has been presented, and upon further consideration it is not thought that the said D. R. Rice is deserving of clemency at this time. Now, therefore, I, O. B. Colquitt, Governor of Texas, by virtue of the authority vested in me under the law, and by virtue of the said conditional pardon above quoted, do hereby determine that the said D. R. Rice is not deserving of the clemency asked for at this time, and do further hereby declare the said conditional pardon revoked and void, and direct the sheriff of Hill county, or any other sheriff or peace officer of this state to take into custody the body of the said D. R. Rice and convey him back to the state penitentiary and deliver him to the proper officer thereof, to be confined therein for such portion of his sentence as had not expired at the time of his release on said conditional pardon.”

Appellant was rearrested and confined in the Tarrant county jail when he sued out a writ of habeas corpus before Hon. Marvin H. Brown, judge of the district court of Tarrant county. When the application came on to be heard, the judge refused to admit any testimony other than the two proclamations of Gov. Colquitt — the one granting the conditional pardon, and the other revoking it. Upon the hearing, relator was remanded to the custody of the sheriff, and prosecutes this appeal.

Able arguments were made in this court, both by counsel for relator and counsel for the state. Briefs showing research, study, and much learning were filed by both counsel, and owing to the importance of the question involved, we have given the question much thought. The reporter is requested to print the briefs in connection with this opinion, and, it being so done, it becomes unnecessary for us to state the contentions of each, and it becomes only necessary for us, to decide those questions necessary to the disposition of this case; the others raised we will not discuss.

Many able opinions have been written in regard to the pardoning power, by the courts of final resort in many of the states, and we have carefully and thoughtfully read many of them. We adopt those that hold:

“Pardon has been defined as a ‘remission of guilt.’ Another definition, much quoted, is that it ‘is an act of grace proceeding from the power intrusted with the execution of the laws, which exempts the individual on whom it is bestowed from the punishment the Taw inflicts for a crime he has committed.’ In another ease it is said to be ‘an act of grace by which an offender is released from the consequences of his offense, so far as such release is practicable and within the control of the pardoning power or of officers under its direction.’ ⅝ * * But these definitions must necessarily, as ail definitions of law terms, convey an imperfect idea of the full meaning and effect of a pardon. It is only by a study of the adjudged cases that an accurate idea of a pardon, in law, can be obtained. * ⅜ *
“The Saxon kings of England had the power to grant pardons; and then and ever since it lias been deemed one of the king’s prerogatives. Anciently the power of pardoning in certain districts was claimed by the lords of marches, and even by others who had jura regalia by ancient grants from the crown, or by prescription. But by an early statute it was declared that the king had the sole power of pardoning treason or felonies, whether the offense was ‘committed in England or Wales, or the marches of the same.’ In that country, the king is the prosecutor of all offenders against the criminal laws of the realm, and in his name all actions are brought. It was then perfectly consistent in theory that the king could, by means of a pardon, remit any punishment due to public justice, or any fine or forfeiture which he himself would otherwise receive..
“Under our Constitution the President has ‘power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.’ There was a motion made in the convention to limit his power to grant reprieves until the ensuing session of the senate; and a further attempt to withhold the power to pardon for treason, and' leave that power to Congress; or that he might pardon for treason by and with the advice and consent of the senate. It was also proposed that in all cases the consent of the senate should bé necessary to render a pardon available. But the clause was settled as it now is, seemingly without much controversy.
“It was the theory of the early law-writers of England that all liberties of the subject were first derived from the crown. Such was the understanding of Bacon. ■ And thus arose the claim of those monarchs to pardon offenses viewed as trespasses against their peace. Certain great authorities have gone so far as to state that no pardon could be granted in a democracy, but these are only illustrations of the narrow and limited views so frequently found among the early legal writers, and which to-day frequently impede, rather than promote, public justice. In this country all power is in the people. If unrestricted by any Constitution, the power of Congress would be supreme — supreme as the delegates and representatives of the people. ,Iii such' a case Congress would have supreme power to grant a pardon. What is true of Congress is also true of Legislatures of the states. But the power of granting pdrdons to offenders against the United States has been delegated to the President, because he stands, if such can be said of any person, in the place similar to that occupied by the monarchs of other nations. He does not hold the power simply because he is the chief 'executive, but because it is expressly delegated ■ to him. And what is true of the President is also true of the chief executive of a state where such power is granted to him by the'Constitution. * * *
“It is a maxim of constitutional law that no one of the three great departments of the government shall intrude upon any one of the others, and all attempts to do so are void. And it is universally conceded that, the Constitution having given the President power to grant pardons, such grant is to the exclusion of all the other departments of the government, and that no other person can grant it or in any way dictate to the chief executive to whom he shall extend or withhold his clemency. ‘This power is not subject to legislative control. Congress can neither limit the effect of his pardon nor exclude from its exercise any class of offenders. The benign prerogative of mercy reposed in him cannot be fettered by any legislative restriction.’ Such is the rule where the chief executive of a state has sole power, under the Constitution, to grant a pardon.”

These views and thoughts are copied from very able law-writers, and express most fully our views on the subject. The Constitution of this state granting that power to the Governor, it is for him alone to exercise without restraint or restriction from any source, other than the sovereigns of the state who wrote and adopted the Constitution.

The power to grant absolute pardons necessarily carries with it the lesser power to grant conditional pardons, and to write into the gift or grant such conditions as he deems advisable, without restraint or hindrance, so long as he states therein no illegal or immoral conditions. In the conditional pardon issued in this case, he stated no illegal nor immoral condition and he had the right, authority, and power to place therein the conditions he did write into it, and he would have the right to place therein any other conditions he deemed advisable. Thus far, we thoroughly agree with counsel for the state in their contention.

But counsel for the state insist that the power to’ grant pardons necessarily carries with it the authority and power to control the pardon after its issuance and acceptance. Under all the authorities we have been able to find, the rule is that when the Governor has issued an unconditional pardon, and it is accepted by the prisoner, and he is released thereunder, all power and control over the prisoner is gone. The Governor has no authority to revoke an unconditional pardon after its issuance, delivery, and acceptance. It is true that when a pardon has been obtained by fraud, when that fact is proven, it may be canceled and annulled by the proper tribunal; but this must be legally ascertained before an unconditional pardon can be canceled, and the prisoner rearrested and confined.

A conditional pardon is as absolute an act upon the conditions named therein as is an unconditional pardon. It can be revoked and annulled only upon a violation of the conditions the Governor has seen proper to insert therein. Upon a violation of the conditions, tlie right of revocation at once arises; but if the conditions are not violated, the right to annul does not exist. This right springs into existence coincident with the violation of the conditions, or either of them, named in the conditional pardon. If relator has violated any of the conditions named in the gift or grant of the Governor, and this fact is properly ascertained, this court nor any other tribunal cannot question his right to cancel and annul the pardon, nor review nor control his discretion and power in so doing. But the question arises: Does the Governor state or claim in the proclamation of revocation that relator has violated any of the conditions he deemed advisable to place in the pardon granted by him? He granted it, the “condition being that if this pardon is accepted by relator, he must conduct himself as a good and law-abiding citizen and not violate the laws of the state before the expiration of the time for which he was sentenced,” in this case being during the remainder of his life. Now, in the proclamation of revocation, does the Governor allege, state, or find that relator has violated the conditions therein named? Does he state or claim that in the three days of his release he did not conduct himself as a good and law-abiding citizen, or does he claim that relator has violated the laws of this state? No, the sole ground alleged is that since the granting of the conditional pardon further evidence has been presented, and upon further consideration he does not thjnk relator entitled to clemency at this time. It is but another way of stating if he had had this further evidence he would not have granted the pardon he had theretofore granted. So, the question presented is that having granted a pardon upon conditions named therein, and the pardon delivered and accepted, can the Governor revoke it at his will, even though the relator never violates the conditions the Governor saw proper to place therein as a condition upon which he would extend mercy or grace? Can he take back the pardon, even though the relator religiously lives up to the conditions upon which it was granted? That the Governor can- revoke the pardon if relator violates the conditions of the pardon cannot be questioned, for he reserved in the grant the right to do so, and this he had the right to do. But, having granted relator a pardon upon the conditions that he conduct himself as a good and law-abiding citizen, and that he violate no law of this ocate, and this pardon having been delivered to him and accepted by relator, the power and authority to annul it, except upon the violation of the conditions named, does not exist. It is. not inherent in the office of Governor, it was not granted to him by the Constitution, and the revocation in this instance is null and void.

Counsel for the state insist that, even though the action was arbitrary and without warrant in law, this court has no right to review his acts; that this discretion Is confided in or conferred on him, and we have no right to review that discretion. It is true the right to grant pardons is conferred on the Governor by the Constitution, and in granting them his actions are not subject to review ; but the power to grant pardons does not necessarily carry with it the right to revoke them. As before stated, it is the universal rule that the Governor has no right to revoke an unconditional pardon when delivered and accepted. The power to revoke arises by reason of the conditions named in a conditional pardon, and its acceptance on those terms. It is true he cannot be and ought not to be controlled by any other tribunal in exercising his judgment as to the conditions upon which he will grant a pardon. In this respect his discretion is absolute and cannot be reviewed by this court. But, having exercised this discretion, and placed, in the pardon such conditions as he deems advisable, when delivered to and accepted by the prisoner, he is entitled to his release from prison. He becomes a free man and entitled to his liberty so long as he complies with those conditions, and none _ have the right to say to him nay, so long as he complies with the conditions which he accepted to obtain his liberty. For, while our Constitution gives to the Governor the right to grant pardons, it contains provisions also for the protection of the life and liberty of the citizen, no matter how humble he may be, and that Constitution places upon the duly constituted officers of the government the duty to see that the citizen is protected in his life and liberty so long as he may be entitled thereto under the laws of the state. Article 2 of the Constitution, in the division of the powers of the government into executive, legislative, and judicial branches, further provides that no person, or collection of persons, being of one of these departments, shall exercise the power of the other, except in the instances herein expressly permitted. We are not seeking to exercise any power conferred on the Governor, nor would we do so; but there is some power conferred on — nay, a duty placed on — the judiciary department of this state. Article 1, § 12, provides that the writ of habeas corpus shall never be suspended, and in section 6 of article 5, the power to issue the writ of habeas corpus is specifically conferred on this court in all cases. Section 9 of article 1 provides that the people of this state shall be secure in their persons, and no warrant to seize any person shall issue without probable cause supported by oath or affirmation; and section 19 of article 1 provides that no citizen of this state shall be deprived of his liberty, except by due course of the law of the land.

If a citizen of this state is wrongfully incarcerated in prison, it is not only o'ur right, but, under the plain mandates of the Constitution, it is made the duty of this court, upon habeas corpus, to inquire into and see if he is legally and lawfully restrained of his liberty, and, if he is not, we would be recreant to the duty Imposed on us if we did not order his release and protect him in his liberty.

As hereinbefore stated, if relator shall, at any time after his acceptance and release under the pardon given by the Governor, violate the conditions placed therein by the Governor at the time of granting same, and which he accepted to secure his release from, imprisonment, the Governor, if in his discretion he deems advisable, may revoke and annul the pardon; but until he does violate the conditions he is entitled to his liberty, and he is ordered discharged. The other questions raised, in view of this disposition of the case, it is unnecessary to decide, and they are not passed on.

Able counsel for the relator and the state have cited so nlany authorities, we have not deemed it necessary to.do so in this opinion, but merely refer to them; the briefs being ordered printed in connection with this opinion.

Reversed, and relator ordered discharged.

On Motion for Rehearing.

In this case the state has filed a motion for rehearing, and upon the invitation of the court the Honorable S. O. Padelford made a very able oral argument, but stated he had not had time and would not have time to file such written brief as he desired to file before the adjournment of court, and inasmuch as this court, by operation of law, must adjourn for the term this week, and the question presented is one of much importance, we have concluded to postpone consideration of the motion for rehearing until the beginning of the next term, with the request that state’s couDsel file such brief as they may desire on or before August 1st, and that relator’s counsel file a brief, if they so desire, on or before September 1st, that this court may give to this case that study and thought its importance deserves during vacation. However, in entering this order, we do not think relator ought to be confined in jail during the vacation of the court, and while counsel are preparing their briefs, but that he ought to be allowed his liberty during such time, and we hereby order him released upon entering into bond with two or more good sufficient sureties in the sum of $500, conditioned that relator will make his appearance before this court at the beginning of the next term of this court, being the first Monday in October, 1913, and there remain from day to day and term to term to abide the judgment and decree of this court upon the final disposition of this case; said bond to be presented to and approved by the sheriff of Tarrant county, who is ordered to release relator upon the execution and delivery of such bond to him, and which said bond will be forwarded by the sheriff after its approval by him to the clerk of this court to be filed with the papers in this cause.

On Motion for Rehearing.

At the last term of court this case was reversed and relator ordered discharged. The state filed a motion for rehearing, and at their instance the ease was continued until this term to enable them to prepare and file a brief herein. Able and exhaustive briefs have been filed both for the state and relator, and we have carefully perused each of them; but, being of the opinion the original judgment entered was correct, we • would write no further, only that the state seems to have misunderstood the language we used, or we did not make our meaning clear. It is stated in the brief that “the judge of the lower court held that the judiciary of this state cannot supervise, inquire into, set aside, or disturb the action of the Governor, the chief executive of this state, in the performance of the powers and functions conferred upon him by and under the Constitution of this state,” and by inference proceeds to argue that this court had held otherwise. In no line or syllable of the original opinion can such construction be placed on the language there used. But, if there is any provision of the Constitution or in the statutes of this state that authorizes the Governor to revoke a pardon, state’s counsel have failed to point it out, and we have been unable to find it. In fact, we may state that there is no such authority granted the Governor by the Constitution or laws of this state. In the brief filed in behalf of the state it seems that the contention is made that, as the Governor is granted power and authority to grant a pardon, this includes the right to revoke a pardon after it is granted, and that the state’s contention is based upon the error that the Constitution confides to the Governor the power and authority to revoke a pardon ás well as to grant it is manifest throughout in the brief filed. An unconditional pardon could not be revoked unless obtained by fraud, etc., has been universally held by all the courts, and then it is revoked on the ground that it was void in its incipiency because obtained by fraud. It is not a power of revocation which is being exercised, but an ascertainment of a fact which rendered it void when issued; the same rule being applied to pardons that is applied to all other transactions in life. And if the Governor is not granted the authority and power to revoke an unconditional pardon at pleasure by the Constitution — and this certainly no one can so contend — then the right to revoke a conditional pardon comes, not from any power conferred on him by the Constitution and laws of the state, but by reason of the conditions placed in the pardon, and solely from that source.

The state in its brief ably and learnedly discusses tlie three divisions of the government, to all of which we agree, and recites the history of the foundation of our government, which we do not deem necessary to discuss at his time. We would not, nor would we be authorized to, seek to control the actions of the Governor in matters in which the Constitution confers on him the authority and power. But if the Governor should seek to revoke an unconditional pardon on the ground that it was obtained by fraud, we would not inquire into whether or not the Governor had the power to revoke the pardon if a fraud had been perpetrated in obtaining it, but upon proper allegations we would determine whether or not a fraud had been perpetrated. The mere recital that a fraud had been perpetrated would not be conclusive nor binding on this court. So in a conditional pardon, if it was recited that the conditions had been violated, we would inquire into and see if the conditions had been in fact violated, unless in the conditional pardon the Governor had reserved to himself the right to so find and the pardon had been accepted under such conditions.

The statement is made in the brief that the “Constitution confers upon and delegates to the Governor the power and jurisdiction over 'pardons.” This is erroneous. The Constitution only grants to the Governor the power,to grant pardons, and confers upon him no further or other jurisdiction in the premises, and all the argument and authorities based upon such premise is of little force, or of no force, because based upon an incorrect conclusion. The Governor in granting a pardon can place therein conditions if he so desires, and provide for a revocation in the event the conditions are violated; and he and he alone, must make the revocation, and this court and no other court would seek to control his action in revoking the pardon if the conditions have been violated. But his power and authority to revoke does not arise until a violation of the conditions has taken place. Then it is, and not until then, does a discretionary power vest in him to say whether or not he will revoke the pardon. If, upon the violation of the conditions named, he revokes the pardon, we would not seek to stay his hand, nor would we have any authority to do so. If he should decide that a violation took place under such conditions that he would not revoke it, we. would not and could not require him to do so. This is the discretion with which he is invested— whether or not he will revoke after a violation of the conditions — and we heartily agree with all the authorities cited by the state that we should not seek to control a discretion of the Governor in a matter which is confided to him. But the Constitution nor the laws of this state do not invest the Governor with the authority to conduct an investigation and decide whether or not the condition has been violated. If he has this power, it must arise from the language he uses and reservations he makes in the conditional pardon. But this feature of the case, to which the state devotes so much of its brief and argument, need not be discussed, because the Governor' in the attempted revocation does not claim that the conditions named by him in the pardon have been violated by relator.

The state also claims in its brief that we hold a conditional pardon is the same as an unconditional iiardon. This is a misconception of the language of the opinion, for we did not hold nor intend to hold any such thing. What we did hold was that the Governor has no more authority to revoke a' conditional pardon until a violation of the condition than he has to revoke an unconditional pardon. This and nothing more, and upon this misconception of our holding that, the state builds a straw man and knocks him down. As hereinbefore stated, we did not in the original opinion, nor do we now, hold that this court can review or control the discretion of the Governor in any matter in which the Constitution or the law confides to him. What we did hold and now hold- is that the Governor was invested with no discretion to act in the premises by the Constitution nor the laws of this state, until some of the conditions placed by him in the pardon had been violated, and, as he did not claim and does not now claim that any of the .conditions have been violated, he had no power of revocation in this case, and will have none until some of the conditions named in the pardon have been violated by relator.

When the pardon was delivered to and accepted by relator, the conditions became binding on him, and the Governor as well, and, before the Governor can act, relator must violate the conditions named, or some one of them.

The motion for rehearing is overruled.


source: Caselaw Access Project

author: JENKINS, J.

license: Public Domain

text:
    HOUSTON BELT & TERMINAL RY. CO. v. WINERICH.
    (Court of Civil Appeals of Texas. Austin.
    Dec. 17, 1913.
    Rehearing Denied Jan. 28, 1914.)
    1. Trial (§ 139) — Nonsuit—Juey Question.
    A case cannot be taken from the jury, unless the evidence, viewed most favorably to plaintiff, conclusively shows defendant’s nonlia-bility.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 332, 333, 338-341, 365; Dec. Dig. § 139.)
    2. Carriers (§ 286) — Carriage of Passengers — Stations.
    One visiting a railroad depot to inquire as to a train on which he desires to become a passenger is an invitee of the railroad company, and it owes him the duty of exercising reasonable care to keep its premises in such condition that he will not, while in the exercise of ordinary care, suffer injury in seeking an exit.
    [Ed. Note.—Eor other cases, see Carriers, Cent. Dig. §§ 1142-1148, 1150-1152; Dec. Dig. § 286.]
    8. Carriers (§ 320)—Stations—Injuries to Passenger—Jury Question.
    In an action by one who fell down an elevator shaft in a station of a railroad company, evidence of the company’s negligence in maintaining in a dangerous condition what was an apparent exit held sufficient to go to the jury.
    [Ed. Note.—Eor other cases, see Carriers, Cent. Dig. § 1153; Dec. Dig. § 320.]
    Appeal from District Court, Harris County; Wm. Masterson, Judge.
    Action by C. H. Winerieh against the Houston Belt & Terminal Railway Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Andrews, Ball, & Streetman, of Houston, for appellant. J. V. Meek, J. W. Parker, and C. C. Highsmith, all of Houston, for appellee.

      For other cases sea same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   JENKINS, J.

This is an appeal.from a judgment for damages on account of injuries received by appellee in falling down an elevator shaft, which he mistook for a door, through which exit could be made from appellant’s depot building.

Though there are six assignments of error, they all relate to the same point, viz.: The refusal of the court to peremptorily instruct the jury to return a verdict for appellant, as reguested in special charge No. 1, asked by it.

1. The law in such case is well settled, and is that if, under the evidence taken most favorably for the plaintiff, the want of negligence on the part of the defendant, or the contributory negligence of the plaintiff, so clearly appears that the minds of reasonable men, uninfluenced by passion or prejudice, could reach no other conclusion than that the defendant was not guilty of negligence, or, if so, that the plaintiff was guilty of negligence which proximately contributed to his injury, the court should instruct a verdict for the defendant; otherwise such charge should not be given. Lee v. Railway Co., 89 Tex. 588, 36 S. W. 63; Railway Co. v. Hill, 71 Tex. 459, 9 S. W. 351; Traction Co. v. Levyson, 52 Tex. Civ. App. 122, 113 S. W. 572; Freeman v. Kennerly, 151 S. W. 581; Choate v. Railway Co., 90 Tex. 85, 86, 36 S. W. 247, 37 S. W. 319.

2. Appellee testified that at the time of the injury he had gone to appellant’s depot to inquire of its ticket agent as to the running of a train on which he desired to become a passenger. If so, he was there by the invitation of appellant, and the appellant owed him the duty of exercising reasonable care to keep its premises in such condition as that he would not, in the exercise of ordinary care, suffer injury while seeking an exit from the building. Railway Co. v. Matzdorf, 102 Tex. 44, 112 S. W. 1036, 20 L. R. A. (N. S.) 833, 132 Am. St. Rep. 849; Street on Personal Injuries in Texas, § 104; Loan Agency v. Fleming, 18 Tex. Civ. App. 668, 46 S. W. 66.

3. Appellant insists that the doctrine as to the duty of an owner of a building to keep the same in proper condition, so that those invited there may not be injured, is not applicable to this case, for the reason that the undisputed facts show that the room in which the elevator was situated was not intended for or used by the public, but was for the exclusive use of the employSs of the appellant. Appellee testified that there was no obstruction between this room and the lobby or public waiting room of appellant’s depot, in which the ticket office was situated; that he thought through this room was one of the ways of exit from the lobby; and that this room was not sufficiently lighted for him to discover that the entrance to the elevator was not a door, through which there was an exit from the lobby .or passenger waiting room, and that there was a plank across the elevator, which he mistook for tiling. If this be true, it was sufficient to raise the issue as to whether the appellant was guilty of negligence in maintaining in a dangerous condition what was an apparent exit, or, at least, what a person in the exercise of ordinary care might reasonably have mistaken for an exit from its public lobby.

4. Every case as to negligence vel non or contributory negligence must rest upon its own facts; hence no useful purpose would be served by a statement and discussion of the evidence in this case. Suffice it to say that we find from a careful examination of the record that the evidence was sufficient to raise the issues of fact as to the negligence of appellant and as to the contributory negligence of appellee, and therefore the court did not err in refusing to peremptorily instruct a verdict for appellant.

No other issue being raised by appellant’s assignments of error, the case should be affirmed, and it is so ordered.

Affirmed.