State ex rel. Biles v. District Court of Thirteenth Judicial Dist. , 125 Mont. 337 ( 1951 )

MR CHIEF JUSTICE ADAIR:

The relator Lloyd Biles, an inmate of the state’s prison has filed in the office of the clerk of this court a petition against the district court of Yellowstone county and the Montana state board of pardons, respondents, seeking an order requiring respondents to grant or otherwise commute relator’s current prison sentence of ten years to a term of five years imprisonment, in conformity with that granted to relator’s co-defendant Donald Nagel.

The petition recites that in the district court of Yellowstone county, the relator Lloyd Biles and one Donald Nagel, a co-defendant with relator and relator’s accomplice were jointly tried and convicted of the crime of robbery; that on August 9, 1948 each was sentenced to ten years imprisonment in the state’s prison; and that on May 25, 1951, the respondent Montana state board of pardons commuted or reduced the sentence of said Donald Nagel from ten to five years. Relator urges that by reason of such action by the board relator is likewise entitled to the same relief and reduction. Thus is it sought to make of this court a pardoning board. Such is not the court’s function.

R. C. M. 1947, secs. 94-9801 to 94-9820 provide for the granting of commutations of sentence and pardons by the Governor subject to the approval by the board of pardons in accordance with section 9 of Article YII of the Constitution of Montana.

The authority here sought to be invoked is granted to the executive department of the state and is to be exercised by the Governor and by the board of pardons rather than by the judicial department. See 46 C. J., Pardons, p. 1185, secs. 12 and 13; 67 C. J. S., Pardons, sec. 3, page 565, sec. 14, page 581, and sec. 15, page 583; 39 Am. Jur., Pardon, Reprieve and Amnesty, p. 528, sec. 15, p. 531, sec. 23; State ex rel. Reid v. District Court, 68 Mont. 309, 312, 218 Pac. 558, 559; Ex parte Sheehan, 100 Mont. 244, 255, 49 Pac. (2d) 438, 442; Ex parte Chambers, 69 N. D. 309, 285 N. W. 862; Ex parte Barrett, 75 Okl. Cr. 414, 132 Pac. (2d) 657.

The relief which relator here seeks must be obtained, if at all, through the Governor and the state board of pardons and not from the courts. Lacking jurisdiction to make the order sought the petition is denied and the proceeding dismissed.

ASSOCIATE JUSTICES METCALF, FREEBOURN, BOTTOMLY and ANGSTMAN, concur.