I cannot concur fully in the present opinion I agree with my brother that the Governor of Iowa could waive the rights of that State in the matter of the further punishment of defendant Saunders, and that the weight of authority is against the ruling of the Supreme Court of Massachusetts upon that question. My disagreement is on the facts of the case pertaining to this point. As I read the record, the Governor of Iowa has never waived such right, and in legal fiction, Saunders was an inmate of the Iowa Penitentiary at the time of his trial, and even so now. The document issued by the Governor of Iowa is a legal curiosity, and should be preserved. The pertinent part reads:
"KNOW YE, That by virtue of authority in me vested by law, and for good and sufficient reasons to me appearing, I, W.L. Harding, Governor of the State of Iowa, in the name and authority of the people thereof, do hereby SUSPEND the further execution of the judgment *Page 657 of the District Court of Polk County, whereby T.N. Saunders, No. 11268 State Penitentiary, was, at the September Term, A.D. 1917, sentenced to imprisonment in the Penitentiary at Fort Madison for a term of two years, for the offense of LARCENY OF POULTRY.
"This suspension of sentence is granted upon the recommendation of the Board of Parole and is for the purpose of releasing the prisoner to the authorities of Livingston County, State of Missouri, for trial under pending indictments, it being expressly understood that the State of Missouri assumes all expense of his removal and in case of failure to convict the said T.M. Saunders shall be returned to the Penitentiary of this State for the completion of his sentence, such return to be without expense to this State.
"The Governor of the State may for cause revoke the foregoing and direct the further execution of the sentence, or make other or further order in the case, or modification thereof."
The Governor of Iowa, by this document never waived any rights of his State. It is neither a pardon nor a parole. He calls it neither. He calls it a suspension of a court judgment, a matter not within executive power. Counsel for the defendant said on oral argument that this instrument evidenced "a mere loan of the defendant to the State of Missouri by the State of Iowa for the purposes of the present prosecution."
To my mind this properly names the written document from the distinguished Governor of Iowa, who has added to legal lore by the novelty of the instrument before us. On the facts, I cannot concur to that portion of my brother's opinion which rules that the Governor had waived the rights of the State of Iowa. How this may effect the future conduct of the case, I need not discuss at this time.
As to instruction No. 6, I have no doubt that it is both erroneous and prejudicial, and so record myself. Error is presumed to be prejudicial, and the record taken *Page 658 as a whole does not overcome such presumption. With this view, my concurrence is in the result of my learned brother's opinion.
Woodson and Higbee, JJ., concur in these views.