Section 218 of the Prison Law (now Correction Law, Cons. Laws, ch. 43), as amended by chapter 286 of the Laws of 1912, reads as follows: "Absolute discharge of paroled prisoner. If it shall appear to said board of parole that there is reasonable probability that any prisoner so on parole will live and remain at liberty without violating the law, and that his absolute discharge from imprisonment is not incompatible with the welfare of society, then said board shall issue to said *Page 171 prisoner an absolute discharge from imprisonment upon such sentence, which shall be effective therefor."
Note must be made that this refers to an absolute final discharge, not a release on parole for good behavior.
On June 5, 1931, the Governor commuted the prison term of Joseph Ross who on February 11, 1921, had been sentenced to a determinate term of twenty years for grand larceny first degree, second offense. The certificate of his release is in the record and recites that the commuted term expires June 5, 1931, and annexed to it is the acceptance of the prisoner, wherein he states: "This parole is granted under the conditions as set forth in the commutation granted by the Governor, which provides that I shall live and remain at liberty without violating the law, and be subject to the jurisdiction and control of the Board of Parole, as provided in article eight of the Correction Law, and also under the further condition that if I shall, during the period between the date of my release on parole and the date of the expiration of the full term for which I was sentenced, be convicted of any felony committed in the interval, as aforesaid, I shall, in addition to the sentence which may be imposed for such felony, be compelled to serve in a state prison or penitentiary, the remainder of the term without commutation, which I would have been compelled to serve but for the reduction of my sentence."
The commutation issued from the Executive Chamber, signed by Governor Roosevelt, read: "I do hereby reduce the sentence of each of the said convicts as recommended by said Board, under the conditions * * * he does not offend against the Laws of the State * * * and under the further condition that such convict shall live and remain at liberty without violating the law, and be subject to the jurisdiction and control of the Board of Parole for State Prisons as provided in article eight of the Prison Law,excepting section Two Hundred and Eighteen thereof, and also under the further condition that *Page 172 if any convict whose sentence is so reduced shall, during the period between the date of his release by reason of such reduction and the date of the expiration of the full term for which he was sentenced, be convicted of any felony committed in the interval, aforesaid, he shall, in addition to the sentence which may be imposed for such felony and before beginning the service of such sentence, be compelled to serve in the prison or penitentiary in which he may be confined for the felony for which he is so convicted the remainder of the term without commutation, which he would have been compelled to serve but for the reduction of his sentence * * *."
The prisoner seeks to nullify all the conditions of the Governor's pardon except that which sends him back to serve the remainder of his sentence, if he commits a felony after he is released. He may offend the laws of the State, commit a misdemeanor or any number of them without having broken his promised conditions or, if he does thus break the law, the condition means nothing — no authority can bring him back to serve out his sentence. Likewise when the Governor showed mercy on condition that the prisoner should "be subject to the jurisdiction and control of the Board of Parole for State Prisons as provided in article eight" this likewise was ineffectual to give the Board any control over him whatever. The deliberate act of the Chief Executive stating so specifically the terms of his pardon should not be treated as a nullity.
Ross was released June 5, 1931, after serving ten years, three months and twenty days. Within two months he was back again, having been convicted of the crime "of impairing the morals of a minor." On August 29, 1931, he was returned to prison for violating his parole. On August 21, 1933, he was again paroled and again apprehended October 2, 1933. Paroled again on October 3, 1934, he was returned to prison on January 22, 1935, and released on habeas corpus by the Appellate Division, the court dividing three to two. *Page 173
As the prisoner had broken the terms and conditions of his commutation by subsequently committing a crime, he was rightly rearrested and imprisoned. For the commission of a felony the prisoner had to serve out the balance of his term: for the breaking of the law — a misdemeanor, he was again subject to the Board of Parole and might be again paroled, as was done in this case. For this reason if no other he should not have been discharged.
When the Governor said "subject to the jurisdiction and control of the Board of Parole for State Prisons as provided in article eight of the Prison Law excepting section Two Hundred and Eighteen," we would have no doubt as to his meaning had this section read as above quoted and as it was before the amendment in 1928. The commuted prisoner, subject to the Board of Parole, could not be finally and absolutely discharged; he might be paroled but not discharged as provided in section 218.
In 1928 article eight of the Prison Law was revised and section 218 became the following:
"§ 218. Board of parole to act on violations of parole. Whenever there is reasonable cause to believe that a prisoner who has been paroled has violated his parole, the board of parole at its next meeting shall declare such prisoner to be delinquent and time owed shall date from such delinquency. The warden of each prison shall promptly notify the board of parole of the return of a paroled prisoner charged with violation of his parole. Thereupon, such board of parole shall, as soon as practicable, hold a parole court at such prison and consider the case of such parole violator, who shall be given an opportunity to appear personally, but not through counsel or others, before such board of parole and explain the charges made against him. The board of parole shall within a reasonable time act upon such charges, and may, if it sees fit, require such prisoner to serve out in prison the balance of the maximum term for which he was originally sentenced calculated from the date of *Page 174 delinquency or such part thereof as it may determine, or impose such punishment as it deems proper, subject to the provisions of the next section."
Notice that this gives the Board a discretion in requiring the prisoner to serve the maximum sentence: the Governor's commutation says that if a felony be committed the prisonershall serve the remainder of his term.
As above stated, the Parole Board exercised its discretion in this case and paroled Ross two or three times as he had only been convicted of a misdemeanor.
Article nine apparently was not amended to meet the changes in article eight, section 218, because section 242 retained or continued the phrase "excepting section two hundred and eighteen thereof," having reference to that section as it was prior to 1928.
Section 243 of the Prison Law, as amended by chapter 567 of the Laws of 1921, read as follows: "The governor shall, in reducing the sentences of convicts not subject to the jurisdiction of the board of parole, annex a condition that such convict shall live and remain at liberty without violating the law, and be subject to the jurisdiction and control of the board of parole for state prisons as provided in article eight hereof, excepting sectiontwo hundred and eighteen thereof, * * *."
Note that this had reference to definite sentences such as that given Ross.
Chapter 567 of the Laws of 1921 amended section 242 of the Prison Law so as to read: "Any such warrant for the release of other convicts shall be transmitted to the officer to whom it is directed, who shall thereupon proceed to execute such warrant by releasing the convicts mentioned therein on the date fixed for their release. Such convicts shall thereupon be allowed to go on parole outside of said prison walls and inclosure upon such terms and conditions as the board of parole for state prisons shall prescribe, but to remain while so on parole in the legal custody and under the control of the agent and warden of the state prison from which he is so released *Page 175 until the expiration of the term of his sentence subject to the provisions of article eight hereof, excepting section two hundred and eighteen thereof."
The section 218 referred to in both sections 242 and 243 is that section as it was prior to 1928 and which permitted the Board of Parole to discharge prisoners absolutely, not parole them.
The amendments of sections 242 and 243 in 1921 resulted in placing definite-sentenced prisoners under the jurisdiction and control of the Parole Board. Prior to that date the Board had no jurisdiction over them. (People ex rel. Mongno v. Lawes,225 App. Div. 193.)
The Governor in commuting Ross used the language of these sections 242 and 243 and must have intended that section 218 (excepted) should have the meaning which it had when these sections were amended in 1921.
We need not strain, however, to explain these inconsistencies, as the Governor's act must be given a fair and reasonable construction. To say that in one phrase he gave Ross into the "jurisdiction and control of the Board of Parole" and in the next phrase by excepting section 218 (as it now is) took it away, and all in one sentence, lacks sense. The exception means that the Board of Parole cannot grant Ross absolute discharge as it could have done prior to 1928.
The Attorney-General of the State in an opinion (Op. 1935, pp. 127, 128) took this view of the law, saying: "Notwithstanding the fact that section 218 was repealed as of July 1, 1928, section 243 remained as above outlined until April 16, 1931, when the reference to section 218 was omitted."
The order of the Appellate Division should be reversed and that of the County Court dismissing the writ affirmed and the relator remanded to custody.