For an understanding of the issues involved in this appeal a brief statement of the history of the case is necessary. *Page 437
In the year 1915 Ben Bess was tried and convicted in the Court of General Sessions of Florence County upon an indictment charging him with rape upon the person of Maude Collins, and was sentenced by the Court to imprisonment in the State penitentiary for a period of 30 years, and remained in the penitentiary until May 4, 1928, on which date the Governor of the State, his Excellency, John G. Richards, issued an order suspending the said sentence of the prisoner during his good behavior, and he was released from the penitentiary. Thereafter, May 12, 1928, the Governor issued what purported to be a full pardon to the prisoner. The said orders issued by the Governor were based upon a petition asking for a pardon of Bess, an accompanying affidavit of the said Maude Collins, certain letters, and a recommendation of the solicitor who represented the State at the trial of Bess under said indictment. Acting on a verbal order received from the Governor June 21, 1928, which verbal order was confirmed by a written order dated July 16, 1928, the respondent, James N. Pearman, superintendent of the South Carolina penitentiary, received and confined the said Ben Bess in the State penitentiary for safe-keeping. On the 17th day of July, 1928, the Governor issued an order whereby he withdrew, canceled, and annulled the suspension of sentence and the said purported pardon granted to the said Ben Bess on the 4th day of May and the 12th of May (respectively), 1928, for the reason, as stated by the Governor in said order, that the Governor was convinced "that the same were issued on misinformation and obtained by fraud," and an entry was made on the record of the Governor to the same effect.
On the 14th day of July, 1928, a petition was presented by Sallie Bess, wife of Ben Bess, to Hon. W.H. Townsend, Judge of the Fifth Judicial Circuit, asking for a writ ofhabeas corpus for the purpose of bringing before him the said Ben Bess, that his imprisonment in the State penitentiary *Page 438 might be inquired into, and such proceeding had as the law and justice required. Judge Townsend issued the writ prayed for, which writ was directed to James N. Pearman, superintendent of South Carolina penitentiary, respondent herein, and was made returnable July 19, 1928. A return to the writ for the respondent, which return will be reported, was filed by the Attorney General, who appeared for the respondent at the hearing. At the hearing counsel for Ben Bess presented the purported pardon deed, to which reference has been made, and moved that he be "forthwith restored to his liberty, upon the ground that no legal cause had been shown by the return for his imprisonment."
This motion having been overruled by his Honor, Judge Townsend, his Honor referred the matter to J.C. Townsend, Esq., master in equity for Richland County, in which the writ was issued, to take and report the testimony with his findings thereon. The order of reference was opposed by counsel for Bess, and, when the matter was called up before the master, counsel for Bess appeared, but objected to going into the proceedings under the order of reference. This objection was overruled by the master and the reference proceeded. At the reference Ben Bess was represented by the same counsel who appear for him in this Court, and the respondent was represented by the Attorney General as Assistant Attorney General. After taking the testimony offered by the parties, the master reported the same, together with his finding of facts thereon.
The principal question involved in the case is whether or not the said suspension of sentence and the purported pardon deed were issued on misinformation and obtained by fraud, and, if so, whether or not that issue can be adjudicated in this proceeding.
The master's finding was to the effect that no fraud whatsoever was perpetrated against Maude Collins, who signed an affidavit which was used in connection with the petition *Page 439 before the Governor for a pardon. It was this affidavit upon which the solicitor acted when he recommended to the Governor that the petition be granted, and it clearly appears from the testimony in the case that this affidavit was the moving factor in inducing the Governor to grant a suspension of sentence and later issue the purported pardon. The affidavit in question was to the effect that the testimony which the affiant gave upon the trial of Ben Bess was untrue, and that Ben Bess should not be serving any sentence therefor. While the master held that there was no fraud perpetrated upon this party in procuring the affidavit, he reached the conclusion from the testimony in the case that, on account of her "limited education and intelligence," she did not understand the full purport of the affidavit which she signed, and that her interpretation of the same, that it was only given with the intention of forgiving the accused, was different and at variance from the interpretation placed upon the same by the Governor, when he had before him the consideration of the petition for a pardon.
To the master's report the Attorney General filed exceptions, and the matter was heard by his Honor, Judge Townsend, August 23, 1928, upon the testimony taken and reported by the master, together with the findings thereon and exception thereto. At the hearing the Attorney General and his assistants presented arguments for sustaining the exceptions, and counsel for Bess presented arguments contra. At this hearing before Judge Townsend, counsel for Bess took the position, as at the former hearing, that his Honor was without legal authority to render any judgment other than one that would restore Bess to his liberty, and again insisted upon their position that no order of reference could be issued in such a proceeding as the one then before the Court.
After due consideration, his Honor, Judge Townsend, sustained the second and third exceptions to the master's report, which exceptions were as follows: *Page 440
"That the master erred, it is respectfully submitted, in holding and finding in paragraph 10 of the report that no fraud whatsoever was perpetrated against the affiant (Mrs. Maude Collins) in obtaining the affidavit repudiating her testimony given at the original trial; whereas, he should have held that the affiant was not informed and did not know the contents of said affidavit, as stated in paragraph 11 of said report, and that the same was, therefore, obtained from her on misinformation and by fraud.
"That the master erred, it is respectfully submitted, in not finding and stating affirmatively and positively that suspension of sentence and pardon were obtained from the Governor on misinformation and fraud, and that the Governor would not have signed the suspension of sentence by the said affidavit, which amounted to fraud upon the Governor and upon the State."
The said Ben Bess was thereupon, by order of Judge Townsend, issued in said matter, remanded to the custody of the State penitentiary. From this order Ben Bess has appealed to this Court, and asks a reversal upon the grounds set forth in his exceptions.
The appellant, Ben Bess, presents to the Court for its consideration 25 exceptions, but under our view of the case it is not necessary to consider these exceptions separately. As stated above, the main question involved in the appeal is whether or not the said suspension of sentence and the purported pardon deed were issued on misinformation and obtained by fraud, and, if so, whether or not that question can be adjudicated in this proceeding.
As to the first question, that the suspension of sentence and the purported pardon deed were issued on misinformation and obtained by fraud, we do not consider it necessary to enter upon a discussion of the testimony bearing on this question, and a review of the same in our opinion would serve no useful purpose. We deem it sufficient to state that we think the evidence amply supports the finding of Judge *Page 441 Townsend "that the affidavit presented to the Governor [attached to the petition for a pardon] as the free and voluntary confession of the prosecutrix, was not such confession, first, because she did not fully understand the contents or purport when she signed; and, second, because she was induced to sign by bribery; and that the use of the affidavit, so obtained, to obtain the pardon from the Governor worked a fraud in obstruction of justice," and we may add, as we view the evidence, that the said purported pardon was issued on misinformation and obtained by fraud, which, as held by Judge Townsend, renders the pardon a nullity, and forbids the discharge of Ben Bess under it. The purported pardon being a nullity, no rights can be claimed thereunder. It was void from its incipiency, and should be regarded as having never had any force and effect in law. We fully agree with all of the findings of fact and conclusions of law of Judge Townsend, as set forth in his order issued in the cause, bearing date August 23, 1928, and think that the said Ben Bess was properly remanded to the custody of the state penitentiary.
In this connection we desire to state that we can readily understand how the solicitor was misled by the affidavit in question and caused to recommend a pardon for Bess, and we desire to further state that no blame whatsoever should be attached to the attorney who prepared the affidavit. In the preparation of the affidavit, the attorney acted upon information furnished by a third party; he had no conversation with the affiant, and had no intimation that a wrong was being done.
As to the second question, whether or not the issue of fraud can be adjudicated in this proceeding, this question must also be answered against appellant's contention. It seems to be conceded that a Court of equity may inquire into the conditions under which a pardon is issued, and adjudicate a question of fraud in obtaining the same; but it is contended *Page 442 by appellant that such inquiry and such adjudication cannot be made in a habeas corpus proceeding. We do not agree with this contention, but think that the Court in this proceeding had jurisdiction to pass the order which his Honor, Judge Townsend, issued. The Court in which the petition was filed asking for a habeas corpus writ was selected by the petitioner, and the respondent, pursuant to the rule issued, made a return in that Court. The petitioner, having invoked the jurisdiction of the Court by filing his petition therein, is not in a position to question its jurisdiction to consider the case on its merits, while contending that the said Court should exercise the authority to grant unto the petitioner his liberty. This, in effect, is the anomalous position occupied by the petitioner. He contends that he is entitled to his liberty upon the ground that the Governor issued to him a pardon, and that the Court in this proceeding can exercise jurisdiction for the purpose of issuing an order granting unto him his liberty upon the strength of this purported pardon, while at the same time denying to the Court the jurisdiction to inquire into the validity of the purported pardon, and determine whether it was procured lawfully or by fraud as charged by the respondent. From our viewpoint the position is inconsistent.
The appellant further contends, in this connection, that the weight of authority upholds his position that the Court of equity is the only Court that can inquire into the validity of a pardon, and that an action must be instituted in that Court for that purpose. We are unable to agree with appellant. The only cases to which our attention has been called which upholds appellant's position are the cases of Knapp v.Thomas, 39 Ohio St., 377, 48 Am. Rep., 462, which was decided in the year 1883, by a divided Court, three to two;In re Edymoin, 8 How. Prac. (N.Y.), 478, decided in 1853;State v. McIntire, 46 N.C. 1, 58 Am. Dec., 566; Com. v.Ahl, 43 Pa., 53-57, decided in 1862; and I fail to find that *Page 443 the Courts have followed these cases. The case of Ex parteSmith, 8 S.C. 495, cited by appellant as supporting his position, in which case the opinion of the Court was written by Mr. Justice McIver, later Chief Justice, not only does not support appellant's position on this point, but, in our opinion, strongly supports the position of the respondent, and is ample precedent for the order of Judge Townsend in considering and passing upon the validity of the purported pardon in question.
In the Smith case, as in the case at bar, on petition a writ of habeas corpus was issued, directed to the superintendent of the State penitentiary. Smith, a prisoner serving sentence, after conviction, in the State penitentiary, claimed his liberty on the strength of a purported pardon issued by D.H. Chamberlain as Governor of South Carolina. The superintendent of the penitentiary refused to recognize the purported pardon, upon the ground that the paper was not entitled to be respected as a pardon, because the person by whom it was signed was not at the time entitled to exercise the powers of Governor of the State, and the application for the writ was resisted upon the same ground; that Chamberlain's term of office had expired, and that Wade Hampton was at that time the lawful Governor of the State. Thereupon the Court, in the habeas corpus proceeding instituted by the petitioner, proceeded to inquire into and pass upon the validity of the purported pardon, and in doing so it was necessary to inquire into and decide who had been elected to and was entitled to hold the office of Governor of South Carolina, whether Chamberlain or Hampton. In this connection it may be stated that Chamberlain and Hampton were not parties to the proceeding, but it was necessary to decide the title to the office in order to pass upon the validity of the purported pardon in question in the habeas corpus proceeding. The circuit Judge decided the issue in favor of the petitioner, and ordered him released from imprisonment. *Page 444 On appeal to this Court the judgment of the circuit Judge was reversed, and the prisoner remanded to the custody of the superintendent of the penitentiary.
While the outcome of that case, remanding the prisoner to the custody of the superintendent of the State penitentiary, is not involved in the case at bar, the precedent set by the Court in that habeas corpus proceeding, by inquiring into and determining the validity of the purported pardon involved, supports respondent's position in the case at bar, and established a precedent for the action of Judge Townsend in inquiring into and passing upon the validity of the purported pardon involved in the case at bar. We may state, also, that a like precedent was set by the Court in the case of Ex parte Norris, 8 S.C. 408, another case cited by the appellant.
The case of Ex parte Crump, 10 Okla. Crim. 133,135 P., 428, 47 L.R.A. (N.S.), 1036, cited by appellant, was ahabeas corpus proceeding in the Courts of Oklahoma, similar to the one at bar, and in that case the Court inquired into and passed upon the validity of the purported pardon involved, just as Judge Townsend did in the case at bar, and as was done in Ex parte Smith, supra, and in Ex parteNorris, supra. The fact that in one instance the authority of the person who signed the purported pardon was involved, and in the other the fraudulent procurement of the signature of the person who signed the purported pardon was involved, could make no difference. In each instance it was a question of the validity of the purported pardon.
Under the report of the case of Rathbun v. Baumel, decided by the Courts of the State of Iowa, reported in196 Iowa 1233, 191 N.W., 297, 30 A.L.R., 216, the annotator in his valuable notes makes this statement with reference to the rule: "And it has been expressly held, although, as subsequently shown, there is some dissent, that a pardon obtained by fraud worked upon the executive granting is *Page 445 thereby rendered void, and as such subject to attack onhabeas corpus, where rights are claimed thereunder before the Courts. Thus, in Com. ex rel. Crosse v. Halloway (1863)44 Pa., 210, 84 Am. Dec., 431, where a pardon was obtained by means of false and forged representations and papers, it was held that such facts rendered the pardon void, whether the papers themselves suggested the fraud or not, and that the suggestion of fraud could be raised by the Attorney General (and by him only) on habeas corpus issued to allow the prisoner to plead his pardon, and this, although the prisoner did not himself know of or participate in the fraud. * * * And in Dominick v. Bowdoin (1871), 44 Ga. 357, * * * the Court approved the rule that pardons obtained by fraud are void, and held that, upon suggestion of fraud upon the trial of habeas corpus, it was the duty of the Court to hear the evidence and pass upon its merits. So, in Rossonv. State (1887), 23 Tex. App. 287[23 Tex. Crim. 287], 4 S.W. 897, * * * where a prisoner sought to obtain his release from custody on habeas corpus based upon a pardon from the Governor, but the Attorney General set up that the pardon was void, because obtained by fraud or granted by mistake, as shown by the record, it was held that a pardon so obtained is absolutely void where the records show such fraud or mistake. In this case the Governor, after legal delivery of the pardon, had the superintendent of prisons return the same, whereupon he wrote upon it a direction to cancel because `issued on misinformation,' and the Court said that such indorsement, unrebutted by the person pardoned, was sufficient evidence on the face of the record to warrant the Court declaring the pardon void, since it established a prima facie case of fraud."
This was practically what was done in the case at bar. When Governor Richards discovered the fraud that had been practiced upon him in procuring the suspended sentence and purported pardon, he issued orders to the effect that *Page 446 the said orders were withdrawn, canceled, overruled, and void, for the reason that he was convinced that the same were issued on misinformation and obtained by fraud, and made an entry on the record to that effect. Judge Townsend had this record before him, as well as the purported pardon, when he decided the question and issued his order in thehabeas corpus proceeding.
The annotator, to which reference is above made, further commenting on the rule, stated: "In Dominick v. Bowdoin,(Ga.), supra, in discussing the question what fraud is sufficient to warrant holding a pardon void on habeas corpus, the Court said that misrepresentation of material facts upon which the Governor acted, and which facts ought to have prevented clemency, if known, or any concealment of material facts or suggestion of false views to the Governor to procure the pardon, ought to be considered." The dissenting authorities, to which the annotator referred as holding a contrary view, we have mentioned above, and called attention to the same.
In the case of Com. v. Kelly (1872), 9 Phila. (Pa.), 586, it was held that a pardon and remission of forfeiture procured by forgery and fraud practiced upon the executive are void, and that the Attorney General may raise the question of validity upon a rule to show cause why an order opening the judgment and staying execution thereon should not be vacated.
In the case of Jamison v. Flanner, a recent case, decided by the Supreme Court of the State of Kansas, in the year 1924, reported in 116 Kan., 624, 228 P., 82, 85, 35 A. the Court, in the course of his discussion of this question L.R., 973, Mr. Justice Harvey in delivering the opinion of stated:
"The correct rule, gathered from the authorities, may be thus stated: The Court does not take judicial notice of individual pardons. When one relies upon a pardon issued to him individually to relieve him from prison, or for any *Page 447 other purpose, he must, in some way and in some proceeding, call it to the attention of the Court. The manner andthe nature of the proceeding in which it is called to the attentionof the Court are not material. When the Court's attention is called to the pardon, it will not inquire into the motives which prompted the pardoning official to issue the pardon, for to do so would be to usurp the pardoning power; but the Court will inquire into the authority of the pardoning official to issue the particular pardon in question, will inquire as to whether fraud was practiced upon the pardoning official, if that be suggested, though on that point much care must be exercised. * * *"
We are convinced that it is proper for the question of fraud charged in obtaining a purported pardon to be raised and passed upon in a habeas corpus proceeding, such as in the case at bar, and that this rule is supported by the weight of authority. Furthermore, in our opinion, there is no sound reason why the rule should not obtain. Of course, nothing herein stated is intended to convey the idea that the question could not have been raised and passed upon in a Court of equity in an action instituted for that purpose.
As to the error imputed to the Circuit Judge in ordering a reference in the matter, it is sufficient to state that, in our opinion, the action of the Circuit Judge in issuing the order of reference is supported by abundant authority and precedent.
We desire to state that, while we have not herein discussed the exceptions separately, we have considered all of them, and all questions fairly raised thereunder. We are unable to agree with appellant.
The exceptions should therefore be overruled, and the judgment of this Court should be that the order of his Honor, Judge Townsend, appealed from herein, be affirmed.
MR. JUSTICE STABLER, and MESSRS. CIRCUIT JUDGES JOHNSON, RICE, MANN, FEATHERSTONE, and RAMAGE concur in this dissent. *Page 448