October 12, 1929. The opinion of the Court was delivered by This is an appeal from an order of his Honor, Judge Townsend, Circuit Judge of the Fifth Judicial Circuit, refusing the application of Sallie Bess, wife of Ben Bess, in a habeas corpus proceeding, for an order discharging him from the custody of the superintendent of the South Carolina penitentiary. The facts are these: *Page 428
The prisoner, Ben Bess, was tried in the Court of General Sessions of Florence County upon an indictment charging him with rape upon the person of one Maude Collins. and convicted. The sentence, dated June 7, 1915, was imprisonment in the penitentiary for a period of 30 years. The prisoner was duly committed and remained in the penitentiary until May 4, 1928.
A short while before that date a petition for a pardon was presented to the Governor, accompanied by an affidavit of the prosecutrix, Maude Collins, to the effect that her testimony upon the trial of Ben Bess was false, and by certain letters and statements, including the unqualified recommendation of the solicitor, the Governor acted upon that petition on May 4, 1928, by issuing an order suspending the said sentence during the good behavior of the prisoner. Upon the issuance of this order he was released from the penitentiary.
Later, on May 12th, the Governor, "for divers good causes and consideration hereunto moving," issued an unconditional pardon to Bess. On June 21st, the Governor, by a verbal order, directed the superintendent of the penitentiary to confine Bess in the penitentiary "for safe-keeping until further directed from this office." Bess was recaptured and reconfined in the penitentiary, I assume under the verbal order. It appears that this step was taken in consequence of the fact that, after the pardon had been issued, considerable stir arose in Florence, and an effort was made to have the prosecutrix, Maude Collins, indicted for perjury. Pending this excitement and the result of action by the grand jury, the Governor ordered the prisoner to be returned to the penitentiary "for safe-keeping."
On July 14th, the wife of Ben Bess presented to Hon. W.H. Townsend, at Columbia, a petition for a writ ofhabeas corpus, that Ben Bess be brought before him, in order that the cause of his imprisonment be inquired into, etc. *Page 429 The writ was signed and made returnable on July 19th. On July 16th, after the writ had been issued, the Governor confirmed by letter the verbal order given to the superintendent for the recapture of Bess, above referred to.
Later, on July 17th, the Governor issued an order reciting that "whereas, it has since been made to appear, and does now appear, and I am convinced that the affidavit which purported to be signed by the prosecutrix to the effect that Ben Bess was innocent, and upon which I relied in granting said suspension of sentence and purported pardon was false, and the representations moving me to grant the same were false and fraudulent, so that said suspension of sentence and purported pardon were obtained by fraud, and never became effective," and proceeded to "withdraw, cancel, and annul" the order of suspension and the unconditional pardon.
On the same day, July 17th, the Governor indorsed upon the record of the pardon in the office of the Secretary of State the following: "The within pardon is hereby canceled, annuled, and void, for the reason that I am convinced that it was issued on misinformation and obtained by fraud." On the same day the Governor made a like indorsement on the suspension of sentence.
On July 19th, the matter came up for a hearing before his Honor, Judge Townsend, as he had ordered. The Attorney General appeared for the respondent, who filed a return relying upon the attempted cancellation of the suspension and pardon. (Note. The verification by the respondent is dated in the record July 10th, which must be an error, as the writ was issued July 14th, and the return refers to the attempted cancellation by the Governor which did not take place until July 17th.)
After the reading of this return counsel for Bess offered in evidence the pardon, and moved for the immediate discharge of Bess upon the ground that said pardon was a complete and absolute reply to the return. Counsel also took the *Page 430 position that the issue of fraud could not be raised in such a manner and in such a proceeding, because, the pardon being complete and regular in every respect upon its face, its legal efficacy could not be defeated or impaired by such an attack as was attempted to be made upon it. His Honor overruled the motion, and, over protest of counsel for Bess, remanded him to the penitentiary; at the same time he made an order (also over the protest of counsel for Bess), referring the matter to the master in equity for Richland County, to take testimony on the question of fraud and report the testimony, with his findings thereon, to his Honor, or to any other Judge having jurisdiction.
The master, over protest of attorneys for Bess, proceeded to take the testimony and report as required by the order. He found that no fraud whatsoever had been perpetrated, and that, while the woman may not have understood the full purport of the affidavit, no unfair advantage had been taken of her in the transaction. He also found that her statement as set out in the affidavit was entitled to more weight as evidence than her attempted repudiation of it, because the evidence established that her effort to repudiate was not made until after threats of prosecution for perjury had been made against her.
In due time the Attorney General, for the respondent, filed exceptions. These exceptions were argued before Judge Townsend on August 23d. The attorneys for Bess argued that his Honor was without jurisdiction to consider the question of fraud. However, in an order signed the same day, Judge Townsend, while sustaining the master's finding that on account of the threats of prosecution for perjury against the woman, there was less reason to believe the attempted repudiation than there was to believe the affidavit, held that fraud had been practiced in the transaction, and that because of such fraud the pardon was void and never took effect. The prisoner was thereupon remanded to the *Page 431 South Carolina penitentiary, where he has ever since been, and now is being, held under the original sentence of the Court.
The main issue upon this appeal is whether the pardon issued by the Governor is open, in a habeas corpus proceeding, to an attack upon the ground that it was issued upon false representations made to the Governor; in other words, whether in such a proceeding it may be attacked upon the ground of fraud in obtaining it.
The exceptions, 25 in number, with subdivisions, raise many questions of regularity of the proceedings before his Honor, Judge Townsend, besides others; but in my opinion they may be disregarded, in view of a determination of the main issue as stated above.
I do not think that there can be a doubt of the power of a Court of equity, in a proper proceeding, to set aside and declare null and void a pardon which has been procured from the Governor by false representations of other species of fraud, nor that a pardon which bears upon its face the unquestionable proof of its invalidity may be so declared by the Governor, or by any one else whose duty may call for such a declaration; but when the pardon is upon its face regular, and the alleged fraud in its procurement depends upon issues of fact, neither the Governor, nor any one else short of a judicial tribunal, may rightly assume the function of deciding such issues of fact. In the present case, that is what the Governor essayed to do, without notice to the party most interested, and without the semblance of a judicial investigation.
There are some decisions to the contrary, but my investigation convinces me that the overwhelming weight of authority and reason is in favor of the foregoing principles. The general rule is that a pardon, assimilated to a deed, cannot be revoked after its issuance, delivery, and acceptance.
"The pardoning power cannot revoke a pardon once delivered, and accepted by the grantee or [his] agent." Ex *Page 432 parte Reno, 66 Mo., 266, 27 Am. Rep., 337; Rosson v.State, 23 Tex. App. 287[23 Tex. Crim. 287]; 4 S.W. 897.
An unconditional pardon, delivered, cannot be revoked even for fraud. Knapp v. Thomas, 39 Ohio St., 377, 48 Am.Rep., 462.
No subsequent action of the executive or of the Legislature can revoke a pardon once tendered and accepted. Statev. Nichols, 26 Ark. 74, 7 Am. Rep., 600.
The Governor has no power to revoke a pardon after delivery.Ex parte Crump, 10 Okla. Crim. 133, 135 P., 428, 47 L.R.A. (N.S.), 1036.
"A full unconditional pardon takes effect upon delivery either to the person who is the subject of the favor, or to some one acting for him or on his behalf. After delivery, a pardon cannot be revoked. The authorities, without any conflict whatever, deny to the Governor any such power and hold the pardon, when delivered, to be irrevocable [citing many cases]." Ex parte Crump, 10 Okla. Crim. 133,135 P., 428, 431, 47 L.R.A. (N.S.), 1036.
In the notes to 59 Am. Dec., 575, Judge Freeman observes: "But a Court cannot go behind a pardon on habeascorpus to inquire into the regularity of the proceeding; nor can the question be raised whether the pardon was obtained by false and fraudulent pretenses; and where it appears onhabeas corpus that the pardon is fair on its face and unconditional, that puts an end to any inquiry into the manner of obtaining it."
In Ex parte Williams, 149 N.C. 436, 63 S.E., 108, 22 L.R.A. (N.S.), 238, it was held, quoting syllabus: "The Governor cannot recall a pardon which he has forwarded to the sheriff for delivery to a prisoner, after the prisoner has complied with the conditions precedent on which it was granted."
"When the charter of the prisoner's pardon reached the hands of the warden, his constituted legal custodian, the *Page 433 executive act of grace was complete, and forever irrevocable."Ex parte Powell, 73 Ala., 517, 521, 49 Am. Rep., 71.
"Simple intention on the part of the executive to bestow a pardon confers no right, and is perfectly nugatory until the intention may be said to be fully completed. This intention may be said to be fully completed when the pardon is signed by the executive, properly attested, authenticated by the seal of the State, and delivered, either to the person who is the subject of the favor, or to some one acting for him, or on his behalf. Whenever these things are done, the grantee, or donee of the favor, becomes entitled as a matter of right to all the benefits and immunities it confers, and of which he cannot be deprived by revocation or recall." Ex parte Reno,66 Mo., 266, 27 Am. Rep., 337. See, also, In re Edymoin, 8 How. Prac. (N.Y.), 478; 20 R.C.L., 441; Territory v.Richardson, 9 Okla. 579, 60 P., 224, 49 L.R.A., 440; Com.v. Ahl, 43 Pa., 53.
As indicated above, there is a well-established exception to the general rule thus stated: that is, that as fraud destroys every transaction, it will destroy the efficacy of a pardon, if proven. The condition must appear by a judicial determination, not be the ipse dixit of any one, however high in executive station. That the Governor could not decide this issue I think is perfectly clear; that the proceeding conducted by his Honor, Judge Townsend, wascoram non judice, I think is equally clear. Habeas corpus is not an action; it is a prerogative writ, forced upon a judicial officer by the Constitution of this State under a heavy penalty. It is a legal statutory proceeding, in no sense within the jurisdiction of that equity which may decree the cancellation of an instrument for fraud.
"An unconditional pardon, immediately operative," and which has been "delivered and accepted, cannot thereafter be revoked except for fraud in its procurement." Ex parteRay, 18 Okla. Crim. 167, 193 P., 635, 640. *Page 434
"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 had been obtained by fraud, when that fact is proven, it may be canceled and annuled by the proper tribunal; but this must be legally ascertained beforean unconditional pardon can be canceled, and the prisonerrearrested and confined." Ex parte Rice, 72 Tex. Crim. 587,162 S.W. 891, 900.
"Though an unconditional pardon cannot, after acceptance, be revoked by the Governor, it may be revoked if it was obtained through fraud, in which case, if no tribunal is fixed by its terms for the determination of the issue, recourse may be had to the Courts." Ex parte Redwine,91 Tex. Crim. 83, 236 S.W. 96, affirmed Redwine v. Texas,261 U.S. 608, 43 S.Ct., 433, 67 L.Ed., 825.
"Before delivery and acceptance, a pardon may be revoked by the officer or body granting it; but, if the pardon is not void in its inception, it cannot be revoked for any cause after its delivery and acceptance are complete, for then it has passed beyond the control of the officer or body who granted it, and becomes a valid and operative act, of the benefits of which its recipient can be deprived only in some appropriate legal proceeding." Ex parte Alvarez, 50 Fla., 24,39 So., 481, 484, 111 Am. St. Rep., 102, 7 Ann. Cas., 88, quoting 24 A. E. Enc. L. (2d Ed.), 595.
"A pardon once granted will not be revoked, merely upon allegations that it was secured by fraud, but the fraud mustbe judicially ascertained." Ex parte Rice, 72 Tex. Crim. 587,162 S.W. 891, 892.
"A Court of equity has the power to investigate the title to a pardon which is attacked on the ground that it was procured *Page 435 by the applicant's fraud on the Governor." Rathbun v.Baumel, 196 Iowa, 1233, 191 N.W., 297, 30 A.L.R., 216.
An analysis of or extracts from the wonderfully learned, luminous, and convincing opinion of the Supreme Court of the State of Ohio, in the case of Knapp v. Thomas, 39 Ohio St., 377, 48 Am. Rep., 462, could not possibly do justice to it. The syllabus of the case is: "An unconditional pardon may not be revoked even for fraud," in a habeas corpus proceeding. The conclusion of the Court, in my opinion, is sustained by a wealth of learning and irresistible logic.
In the case at bar the prisoner had received the benefit of two proclamations from the Governor, one suspending his sentence during good behavior, and the other granting him an unconditional pardon. In the case of State v. Renew,136 S.C. 302, 132 S.E., 613, it was held that the defendant, who had received the benefit of a suspended sentence during good behavior, was entitled to have the issue whether his suspended sentence had been violated submitted to a jury. The Court approved the reasons assigned therefor in a similar case, State v. Sullivan, 127 S.C. 186, 121 S.E., 47,51, by the writer hereof, in his dissenting opinion. There it was said:
"His personal liberty would be just as much at stake as that of any other person accused, and in its protection he would be equally entitled to the due process of the law, the definition of which by Mr. Webster in the Dartmouth Collegecase, 4 Wheat., 518, 4 L.Ed., 629, is as incapable of improvement as `to gild refined gold': `A law which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial.' It is the bedrock of jurisprudence that no one shall be personally bound until he has had his day in Court, has been duly cited to appear, and has been afforded an opportunity to be heard. `Judgment without such citation and opportunity wants all the attributes of a judicial determination; it is judicial usurpation and oppression, *Page 436 and can never be upheld where justice is fairly administered.'" This reasoning applies a fortiori, it would appear, to the beneficiary of a pardon.
The decree of the circuit Judge is reversed, and the prisoner discharged, without prejudice to the right of the state authorities to institute such a proceeding in equity as they may be advised to secure a judicial determination of the issue of fraud in the procurement of the pardon.
MR. CHIEF JUSTICE WATTS, MR. JUSTICE BLEASE, and MESSRS. CIRCUIT JUDGES DENNIS, SEASE, WILSON, MAULDIN, BONHAM, and GRIMBALL concur.