Dissenting. The prisoner after verdict moved for a new trial for error in the instructions. This motion was not allowed and sentence was pronounced and the prisoner appealed.
After the appeal the prisoner was pardoned, and he now here in this Court pleads “ his pardon” as a plea “ since the -last continuance,” in bar of further action in the premises, and in his plea waives his exceptions to the charge of the Judge from which he had appealed and all other grounds -of exception, and takes the position of one who “ has nothing more to say than what has been already said” except his pardon.
In the due order of proceeding this Court can only decide the matters appealed from, and the pardon cannot be pleaded here, but after this Court has declared its opinion to be that there .is no error in the ruling of the Court below, and judgment is moved for in that Court, and the conviction is established according to law by the judgment of the Court, the plea of pardon may be put in and from the ruling in respect to it an appeal to this Court may be taken by the State or by the prisoner.
*235To avoid circuity the Attorney General waives all objection to this irregularity and consents that the validity of the pardon may be decided by this Court in the present stage of the proceeding.
The question involves the construction of Art. Ill, § 6, of the Constitution ; “ The Governor shall have power to grant reprieves, commutations and pardons after conviction for all offences,” &c. This turns upon the sense in which the word “ conviction” is used.
You have a conviction of the truth of the Cliristiah religion, that is, you are convinced of it. The jury has a conviction of the prisoner’s guilt according to the evidence, and the prisoner is said to be convicted by the verdict. The Court has a conviction of the prisoner’s guilt according to the verdict of the jury aud according to the law of the case and pronounces sentence, and the prisoner is then, folly convicted both according to the law and the facts. By the corruptibility of the meaning of words in our language a verdict of guilty signifies the conviction of the prisoner and the judgment of the Court also signifies the conviction of the prisoner. In this sense we say of prisoners confined in the Penitentiary, they are “ convicts,” that is they are under •conviction by the sentence of the law.
The question is, do the words “ after conviction” used, in the Constitution mean after conviction by verdict or after ■conviction by verdict and the judgment of the Court? I have a conviction that the words are used in the hitter sense. My conclusion is based on four grounds:
1. The same section of the Constitution provides; “The Governor shall annually communicate to the General Assembly each case of reprieve, commutation or pardon granted, stating the name of each convict, the crime for which he was convicted, the sentence, and, its date, the date of commutation, pardon or reprieve, and the reasons therefor.”
*236This, as it seems to me, removes all ambiguity and makes-it perfectly clear, that the words “after conviction,” mean' after conviction by judgment, for until there be judgment the Governor cannot communicate to the General Assembly “the sentence” from which his pardon relieved the party. It will he noted that this clause of the section goes much into detail, requiring the Governor to give the name of each convict, the crime, the sentence, its date, the date of the pardon and the reasons therefor; showing an intention to hedge: in the power to grant pardors and to cut off any latitudinarian construction and to confine the power within rigid bounds
2. Another clause of the Constitution show's the sense in which the word “ conviction” is used. Art. I. § c>3; “ ¡¿lavery and involuntary, servitude otherwise than for crime, whereof the party shall have been duly convicted, shall be and are hereby forever prohibited.” Manifestly these Avords mean a conviction by the sentence of the ( ourt. True, a party may withdraw his appeal, submit to the judgment from' which he had appealed, and after doing so apply for pardon;, but to allow him to obtain a pardon pending the appeal while he is contesting the legality of his conviction is in my judgment “ to put the cart before the horse” and to defeat the meaning of the Constitution.
3. There is a legislative construction of these Avords.. Acts 1870-’71, Bat. Rev ch. 78, §37. “EAmry application for pardon must be made to the Governor in writing, signed by the party convicted, or by some person in his hehalf; and every such application shall contain the grounds and masons upon which the Executive pardon is asked and shall be in every case accompanied by a certified copy of the indictment and the verdict and judgment of the Court thereon."
So the application cannot be made until there is a judgment of the Court. By an appeal the judgment of the Court is vacated. No larvyer will dispute this ; and the legal ef-*237feet is the same as if there was no judgment. This statute cuts off all applications for pardon until there be judgment, thus putting a construction upon the words- “after conviction” as used in the Constitution. Here too it will be noted that the statute evinces the same anxiety to prevent an abuse of the power of pardon as evinced by the Constitution.
4. By the common law the Crown had power to pardon at any time after an offence was committed ; before trial, after trial and before judgment and after judgment. See McIntire’s case, 1 Jones, 1.
Under the old Constitution § 9, “the power of granting-pardons and reprieves, except when the prosecution shall be carried on by the General Assembly, or the law shall otherwise direct,” is vested in the Governor.
Under this section the Governors claimed and exercised-as ample powers of granting pardons as belonged to the Crown by the common law. When a pardon was granted before trial, every one felt that the demands of justice had not been fulfilled. So, when á pardon was granted after trial and before judgment, every one felt that the demands of justice had not been fulfilled. Eor the rascal could still go about and say “my guilt has not been established according to law so I am not a convicted felon. True, the jury said I was guilty, but it was because the Judge gave wrong instructions as to the law from which I appealed and thereby his sentence was vacated.” Thus the fact of his guilt or of his innocence is not fixed but is left as an open question. The public mind is not satisfied for the demands of justice have not been met. This could only be when the -prisoner,'by his plea of “guilty” or by the verdict by which the facts were found against him followed up by a judgment of the Court, stood forth as a convicted person who could do nothing more *238than beg fox' mercy. But when a person moves to set aside the verdict and have a new trial because the Judge ei'red in his charge or for some other error, rejection of evidence for instance, or moves in arrest of judgment and vacates the judgment by an appeal to the Supreme Court, his guilt is not established according to law, and should he be pai'doned pending the appeal the public mind will not be satisfied and the demands of justice will not be met; in other words, until his guilt is established both according to the facts and the law. After th§ Judieiary has disposed of him and his-guilt is established according to law he is allowed to appeal to the mercy of the Executive, but not before, for it would disturb the harmony of action should mercy tread upon the; heels of justice by snatching away the party accused before his guilt is fully established.
These remarks are intended to show the evils which, the íxew Constitution meant to remedy. That the evil of pardoning before trial is remedied, all admit. Why should the Constitution stop at a point half way and not also remedy the evil of pardoning after trial and before the guilt of the ■ party is established by judgment and the demands of justice are fully met ? I am not able to conceive of any reason for doing so and I am convinced from the wording of the entire section and the reason of the thing that such was not the intention.
The case cited from the Mass. Reports has no bearing; for the Constitution of that State does not contain the explanatory and restricting clause set out in our- Constitution.
The case cited from the Virginia Reports is distinguishable for in that State the jury fix the punishment and the Court does no more than to order the sentence imposed by the jury to be carried into effect.
I am-of opinion that by our Constitution the Governor *239has no power to pardon until the guilt of the person is definitely fixed by the judgment of the Court.
The plea of pardon should not be allowed.
Pee, Curiam. Pardon allowed.