Credit is due the counsel for the State for the zeal, research and thought exhibited in the motion for rehearing.
Concerning the question of law upon which the decision of the case turns, respected courts of last resort in other jurisdictions have announced conflicting views. In several states the decisions support with more or less cogency the claim of the appellant that because of the full pardon granted him of the prior offense his conviction of *Page 203 that offense is not available to the State to enhance his punishment for the second offense. In other American jurisdictions the contrary is maintained. In some detail the conflict is discussed in the original opinion. The argument of counsel for the State has invoked our most careful re-examination of the subject, as well as the precedents and principles bearing upon the controversy.
The statute (Art. 64, P. C., 1925) covering the present appeal reads thus:
"A person convicted a second time of any offense to which the penalty of death is affixed as an alternative punishment shall not receive on such conviction a less punishment than imprisonment for life in the penitentiary."
In this state robbery is punished by confinement in the penitentiary for life or any term of years not less than five, and when the offense is committed by the use of a deadly weapon, the penalty of death may be assessed, Art. 1408, P. C.
It is pointed out by the attorneys for the State that in many of the judicial decisions concerning the effect of a pardon there is dealt with some civil right other than that of the liberty of the individual. In the case of Ex parte Garland, 4 Wallace 333, 18 L. Ed. 366, Garland, at the time of the Civil War, had sworn allegiance to the Confederate States and had been granted a full pardon by the President of the United States. Congress passed a law making it a condition precedent for a lawyer to practise in the Federal Courts to take an oath that he had not borne arms or aided, directly or indirectly, the Confederate States in the war. The Act of Congress was held unconstitutional. In the opinion of the Supreme Court of the United States the controlling principle is stated in the following words:
"The benign prerogative of mercy reposed in the President cannot be fettered by any legislative restrictions. * * * Such being the case, inquiry arises as to the effect and operation of a pardon, and on this point all of the authorities concur. A pardon reaches both the punishment prescribed for the offense and the guilt of the offender; and when the pardon is full it releases the punishment and blots out all existence of guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offense. * * * If granted after conviction, it removes the penalties and disabilities and restores him to all his civil rights; it makes him, as it were, a new man, and gives him a new credit and capacity." *Page 204
Upon the soundness of the principle stated it is understood that the courts do not differ, but conceding the principle to be sound, the courts, as above stated, are at variance touching its application. Those courts which hold with the State in its present contention base their conclusions upon the principle that the heavier penalty is grounded upon the second offense only and that the courts may rightfully take into consideration the first offense notwithstanding the pardon for the purpose of showing the accused to be a persistent criminal. We understand the effect and interpretation of a pardon is to be determined by the rules governing the subject at common law. Such is the declaration in the text of Amer. Eng. Ency. of Law, Vol. 24, p. 565, and notes citing the decisions of the courts of last resort of the United States and many of the states. Among them is Ex parte Wells, 18 Howard (U.S.) 367. From page 584 of the same volume of the text the following quotation is taken:
"An absolute pardon operates to prevent all further punishment for the offense for which it is given, to remove all penal consequences and disabilities incident to the conviction, and to create in the pardoned offender a new credit and capacity wholly unaffected by his crime."
It is stated in the text that there have been departures from the rule in some cases. However, Texas is among the states that have adhered to it. See Hunnicutt v. State, 18 Tex. App. 519[18 Tex. Crim. 519]; Carr v. State, 19 Tex. App. 660[19 Tex. Crim. 660]; Bennett v. State, 24 Tex. App. 79[24 Tex. Crim. 79]; Railway v. Howell, 30 S.W. 100. The subject is reviewed in the case of Sanders v. State, 108 Tex.Crim. R., in which reference is made to many precedents. In Ruling Case Law, Vol. 20, p. 556, sec. 40, it is declared that the principles laid down by the English courts control the American courts in dealing with the subject. That such is the generally accepted interpretation of such a pardon is verified by the citation in the notes of numerous judicial decisions, including the declaration of the United States Supreme Court in Ex parte Garland, supra, froth which quotation has been made above.
From the case of State of Ohio v. Martin, 43 L. R. A. 94, the following quotation is taken:
"The question presented by the exception is whether a former conviction and imprisonment for a felony, on account of which the governor has granted an unconditional pardon, may be regarded as one of the former convictions necessary to place the accused in the category of habitual criminals, as defined by the act. It may be that *Page 205 the criminal habit is as certainly indicated by the commission of felonies for which unconditional pardons have been granted as by those whose penalties have been suffered to the end. But we must presume that the legislature enacted this section intending that the language should be construed according to the commonly received view as to the effect of a pardon."
The opposing view is set forth in the original opinion, quoting from the opinion of the Supreme Court of Kentucky as follows:
"The increased punishment prescribed by statute for the subsequent offense was no part of the penal consequences of the first offense, but applied exclusively to the last as aggravated by its repetition of the same crime."
On the very subject under consideration the reasoning of the Supreme Court of Virginia in the case of Edwards v. Commonwealth (78 Va. 39) seems, far more logical than those decisions holding that the conviction for the first offense has no part in the punishment but that the penalty is for the second offense alone. From the Virginia case, mentioned, reported in 49 Amer. Rep. 389, the following quotation is taken:
"By the pardon in question therefore the plaintiff in error was not only relieved of the punishment annexed to the offense for which he had been convicted, but of all penalties and consequences, except political disabilities, growing out of his conviction and sentence. One of those consequences was the liability to which it subjected him to receive the additional punishment prescribed by the statute, in case he should be afterward sentenced to the penitentiary in this State. And that additional punishment has been imposed in this case, not by reason of the sentence for the second offense alone, but in consequence of that sentence and the sentence in the former case. Both causes must exist together to produce the effect contemplated by the statute; in the absence of either, no case is made for the imposition of the additional punishment the statute prescribes. But as the first offense was in legal contemplation blotted out, and its consequences removed by the pardon of the governor, it must be regarded, for the purposes of this case, as though it had never been committed. It follows therefore that the judgment of the Circuit Court, sustaining the demurrer to the prisoner's plea, is erroneous and must be reversed."
The prior conviction cannot be obliterated. It remains a fact despite the pardon. Its use against the accused as a potential fact in his trial for a subsequent like offense can be obviated and we *Page 206 think is precluded by the pardon. To the writer the reasoning of the Supreme Court of Virginia quoted above seems to give effect to the interpretation of a pardon at common law, which in passing the statute upon which the conviction rests, the legislature is presumed to have intended to follow. Moreover, the application of the opposite rule would subject one unjustly convicted, who was pardoned, on a subsequent trial to a conviction and enhanced punishment notwithstanding his innocence of the first offense and his pardon therefor. Such effect we think was not intended by the Legislature in the passage of the law.
For the reasons stated, we are constrained to overrule the State's motion for rehearing.
Overruled.
ON STATE'S APPLICATION TO FILE SECOND MOTION FOR REHEARING.