People v. Price , 60 N.Y. Sup. Ct. 185 ( 1889 )

Landon, J.

The trial court refused to hold that the pardon granted the defendant by the governor-of the state of Georgia exempted him from liability to conviction here as for a second offense. The court held that the pardon did not disprove the fact of conviction in the state of Georgia, but was

consistent with it, and hence the defendant might be lawfully convicted under section 688 of our Penal Code, notwithstanding the pardon. The question does not appear to have been decided in this state. The defendant relies upon the principles announced in Ex parte Garland, 4 Wall. 380. The court there held that “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 of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offense.” This broad doctrine is reiterated in subsequent cases. U. S. v. Padelford, 9 Wall. 531; Carlisle v. U. S., 16 Wall. 147; Osborn v. U. S., 91 U. S. 478. Of course past acts cannot be obliterated, but the legal effects of them can be. It remains true that the defendant was convicted in the state of Georgia, although subsequently pardoned, and hence it is urged that the defendant still remains in the class described in section 688 of our Penal Code as one “having been convicted under the laws of another state.” Section 692 of the Penal Code provides-that a pardon which shall relieve from a judgment of habitual criminality shall not prevent a subsequent judgment of habitual criminality upon subsequent conviction for felony. This at first seems to be an exception, and to imply that only witli respect to habitual criminals is previous pardon made inoperative; but it is obviously inserted because needed with respect to habitual criminals, but not needed in the cases mentioned in section 688, because there the fact of previous conviction is made descriptive of the renewed offense irrespective of the fact of pardon. The cases cited from the supreme court of the United States hold that since the pardoning power is conferred upon the executive by the constitution it is not within legislative control or restriction, and hence the legislature cannot diminish the full absolution which the pardon imparts. Assuming this to be true, the result would be that the legislature of the state of Georgia could not impair the force of the pardon which, under the constitution of that state, her governor grants. The same reasoning would apply to the legislature of the state of Yew York with respect to a pardon granted by the governor of Yew York, but does not touch the phase of the case here presented. The police power of every state is complete, except as restrained by her own or the federal constitution. Yo constitutional provision restrains the legislative power of Yew York from prescribing that where persons have been convicted for felony in another state, whether subsequently pardoned or not, they shall, upon subsequent conviction of a felony in this state, be more severely punished. That the power exists is clearly inferable from the extent of the police power as defined by the supreme court of the United States. Railroad Co. v. Husen, 95 U. S. 465, 471, and cases there cited; Bowman v. Railway Co., 125 U. S. 465, 492, 8 Sup. Ct. Rep. 689. Our own courts recognized the fact that a moral stigma rests upon a convict notwithstanding his pardon. In re Attorney, 86 N. Y. 563; Eighmy v. People, 78 N. Y. 333. The fact of conviction is a part of his past history. People v. Raymond, 96 N. Y. 41. In none of the cases in the supreme court of the United States was the pardoned person on trial for a second offense. His pardon proved effectual to exempt him from the penalty incurred either under a prior or subsequent law. Here no penalty is incurred for the offense committed in Georgia, but a double penalty is inflicted upon the repetition here of the like offense. We conclude, therefore, that the fact of the defendant’s conviction for a felony under the laws of the state of Georgia was properly alleged and proved, and that the pardon did not exempt him from the increased punishment prescribed for a second offense.

The defendant excepted to the ruling of the court that one Cochrane was not disqualified as a juror. The defendant then peremptorily challenged him. The defendant did not exhaust his peremptory challenges. Thus the defendant, who did not want this person as a juror, was permitted to exclude him,

without the least embarrassment to his liberty of choice and challenge with respect to the other persons called as jurors. Assuming, but not deciding, that Cochrane was disqualified, the defendant was not obliged to challenge him peremptorily, and, i£ he had not, his exception would have been good, within the McQuade Case, 110 N. Y. 284, 18 N. E. Rep. 156; for he could not know that if ne challenged him he might not have to exhaust all his peremptory challenges in setting aside jurors more objectionable than Cochrane, and yet not have enough to exclude them and Cochrane. But he chose to exercise his peremptory challenge, and the result proved that he did have enough peremptory challenges to exclude all the objectionable jurors and Cochrane. He therefore was not injured. People v. Carpenter, 102 N. Y. 243, 6 N. E. Rep. 584.

We have examined the exceptions to the admission of various portions of the testimony, and to the denial of motions to strike out, and find none that we regal'd as well taken. We have read the entire evidence, and we think it was sufficient to warrant the verdict rendered by the jury. The case against the defendant was one of circumstantial evidence; but we have read the evidence, and are satisfied that, although the defendant did not take the package of bonds, he purposely diverted Hedrick’s attention enough to enable a confederate to take them. Judgment affirmed. All concur.