State v. Jackson , 143 Miss. 745 ( 1926 )

^* Corpus Juris-Cyc References: Constitutional Law, 12CJ, p. 838, n. 58, 59; p. 839, n. 60, 70; Criminal Law, 17CJ, p. 203, n. 90 New; Pardons, 29Cyc, p. 1563, n. 17, 18, 19, 20, 21; Statutes, 36Cyc, p. 977, n. 28; p. 978, n. 31; p. 984, n. 67; Effect of statute giving immunity to witness, see 28 R.C.L. 440; 5 R.C.L. Supp. 1538. The appellee, Jackson, was indicted in the First district of Jones county, Miss., on a charge of violating chapter 155 of the Laws of 1924. The material part of the indictment reads as follows:

". . . Upon their oaths present that A.L. Jackson on the 1st day of September, 1924, in the county and district aforesaid did unlawfully, willfully, and feloniously, without just cause, desert or willfully neglect or refuse to provide for the support or maintenance of Mrs. A.L. Jackson, his wife, leaving her in destitute or necessitous circumstances, against the peace and dignity of the state of Mississippi."

The defendant demurred to the indictment on several grounds:

"That said chapter 155 of the Laws of 1924 is unconstitutional in this:

"(1) The said act is in contravention of section 159 of the said Constitution, in that it is an attempt to, and if carried into effect will, usurp the jurisdiction vested solely in the chancery courts of the said state by the said Constitution.

"(2) The said act is violative of section 87 of the said Constitution in that it attempts to suspend, by authority of the legislature, the provisions of a general law for the benefit of private individuals.

"(3) The said act is void because it is an attempt to, and if carried into effect will, infringe upon the pardoning power, vested in the governor of the state.

"And, finally, the said act is void for that the offense sought to be charged therein and thereby is indefinite, and does not specifically provide and define with reasonable certainty what does constitute ``without reasonable cause,' or what is not a just cause."

Section 1 of chapter 155 reads as follows:

"Be it enacted by the legislature of the state of Mississippi — That any husband who shall without just cause, desert or willfully neglect or refuse to provide for the support or maintenance of his wife, leaving her in destitute or necessitous circumstances; or any parent who shall desert or willfully neglect or refuse to provide for the support and maintenance of his or her child or children under the age of sixteen years, leaving such child or children in destitute or necessitous circumstances, shall be guilty of a felony and on conviction thereof, shall be punished by a fine of not less than twenty-five dollars nor more than five hundred dollars, or by imprisonment in the penitentiary not exceeding two years or both, in the discretion of the court."

Section 3 of chapter 155 reads as follows:

"In case of an indictment, and at the trial on the entry of a plea of guilty or after conviction the court may in imposing the fine or imprisonment as provided for in section 1 of this act, suspend the same or any part thereof, upon the defendant entering into and executing a good and solvent bond to be approved by the circuit clerk conditioned that such defendant will provide for the support and maintenance of his wife or child or children as the case may be for a period of two years."

Section 4 of chapter 155 reads as follows:

"If the court be satisfied by information and due proof under oath that at any time during said period of two years the defendant has violated the condition and terms of such bond it may forthwith proceed to enforce the suspended sentence and penalty aforesaid."

Section 5 provides that:

"No other or greater evidence shall be required to prove the marriage of such husband and wife, or that the defendant is the father or mother of such child or children than is or shall be required to prove such facts in civil actions."

It further provides that:

"In no prosecution under this act shall any existing statute or rule of law prohibiting the disclosure of confidential communications between husband and wife apply, and both husband and wife shall be competent witnesses to testify against each other to any and all relevant matters, including the fact of such marriage and the parentage of such child or children; provided that neither shall be compelled to give evidence incriminating himself or herself."

It further provides that:

"Proof of the desertion of such wife, child or children in destitute or necessitous circumstances or neglect or refusal to provide for the support and maintenance of such wife, child or children shall be prima-facie evidence that such desertion, neglect or refusal is willful."

All of the grounds of attack upon the statute are interesting, but we will consider only the argument that the statute is unconstitutional because it invades the pardoning power vested in the governor by section 124 of the state Consitution, as a decision of that question will dispose of the appeal.

It will be noted from a reading of the statute above set out, that, in case of an indictment and at the trial on the entry of a plea of guilty or after conviction, the court may in imposing the fine or imprisonment, as provided for in section 1 above set out, suspend same or any part thereof, upon the defendant entering into and executing a good and solvent bond to be approved by the circuit clerk, conditioned that such defendant will provide for the support and maintenance of his wife or child or children, as the case may be, for a period of two years.

It is provided in section 4, above set out, that, if the court be satisfied by information and due proof under oath that at any time during said period of two years the defendant has violated the condition and terms of such bond, it may forthwith proceed to enforce the suspended sentence and penalty aforesaid.

Taking the statute as a whole, it clearly appears that it is contemplated that the court may suspend the sentence upon defendant giving a bond for support, according to the ideas of the circuit judge; and, if the bond is given and lived up to for a period of two years, the judgment is not to be further enforced.

The scheme of the legislature clearly was to hold the conviction and sentence over the defendant for the purpose of enforcing the discharge of his civil duties to his wife or child, or both. If the defendant gives a bond and keeps faith for a period of two years, then no provision is made for the infliction of punishment for violation of section 1, and none is contemplated in such case. In other words, at the end of two years, where a bond is given and lived up to, the offense is completely wiped out and satisfied. It is too manifest for doubt that the legislature would not have enacted the first section except for the provisions in sections 3, 4, and 5.

Section 124 of the Constitution of 1890 reads as follows:

"In all criminal and penal cases, excepting those of treason and impeachment, the governor shall have power to grant reprieves and pardons, to remit fines, and in cases of forfeiture, to stay the collection until the end of the next session of the legislature, and by and with the consent of the Senate to remit forfeitures. In cases of treason he shall have power to grant reprieves, and by and with the consent of the Senate, but may respite the sentence until the end of the next session of the legislaure; but no pardon shall be granted before conviction; and in cases of felony, after conviction no pardon shall be granted until the applicant therefor shall have published for thirty days, in some newspaper in the county where the crime was committed, and in case there be no newspaper published in said county, then in an adjoining county, his petition for pardon, setting forth therein the reasons why such pardon should be granted."

This section was construed in State v. Kirby, 96 Miss. 629, 51 So. 811. It was there held that the power to pardon is vested solely and exclusively in the governor of the state, and that the act of the legislature, section 3 of chapter 109 of the Laws of 1908, providing,

"If any convict, when he otherwise ought to be put to work, should be unable to labor from bodily infirmity apparently permanent, the board of supervisors may discharge him from the jail after the expiration of thirty days from the date of sentence. But in no case shall a convict be discharged, unless there be produced to the board a certificate of the sheriff, a physician and another reputable person as to such infirmity, and the sheriff shall make the fine, costs and jail fees out of the property and effects of the convict, if he have any," — was unconstitutional. The court said in its opinion:

"It is claimed on the part of the state that the above section of the act violates section 124 of the Constitution of the state in that it constitutes a pardon by the board of supervisors, a power which is exclusively delegated to the governor. We do not deem it necessary to set out here the section of the Constitution above referred to, further than to say that it is provided therein that in all criminal and penal cases, except treason and impeachment, the governor shall have the power to grant reprieves and pardons, to remit fines, etc. An examination of this section of the Constitution convinces us that section 3, page 105, of the Acts of 1908, is an invasion of the power of the governor, and the section in question is unconstitutional. The sole power to pardon is confided by the Constitution to the governor, and cannot be delegated elsewhere by the legislature. 8 Cyc. 829. The provisions of the act are humane and praiseworthy, but with this we have no concern, when engaged in determining its validity."

In 29 Cyc. at page 1563, it is said:

"The Constitution of the United States gives to the President the ``power to grant reprieves and pardons for offences against the United States, except in cases of impeachment.' By the Constitutions of some of the states, the power of pardoning is vested in the governor alone; in others, the consent of the legislature is required; and not infrequently the power of pardon is delegated to a board. The pardoning power, whether exercised under the federal or state Constitution, is the same, in its nature and effect, as that exercised by the representatives of the English crown in this country in colonial times.

"The pardoning power is not naturally nor necessarily an executive function; and, where the Constitution is silent, vests no more in one branch of the government than in the other."

It will be seen from this text that the pardoning power in the different states is differently vested; that is, in some states the pardon board exercises the function, and in others the consent of the legislature is necessary, while in others it is vested in the governor alone. The case above cited shows that in our state it is vested alone in the governor. The legislature is powerless to limit, restrict, or withdraw the power from the governor, and is powerless to exercise the power itself or to confer on any other agency than the governor the power to pardon.

An interesting case upon the pardoning power is Ex parteGarland, 4 Wall. 333, 18 L.Ed., 366. In that case the Congress of the United States undertook to provide that no person who had engaged in the rebellion should practice law in the United States courts, and provided that all applicants practicing in such court must take affidavit to the effect that he had not so participated. The President had granted a pardon to Garland, who presented his pardon with his application to be permitted to resume his practice in the United States supreme court, he having been admitted to practice therein before the war, and having held office under the Confederate government. The court held that the effect of the pardon by the President was a complete remission of all the penalties for engaging in the Civil War and the Confederate service, and that Congress could not restrict the effect of the pardon by the statute involved; that the power of pardon in the President was complete and unrestricted, and that Congress could not validly legislate with reference thereto, so as to deprive the President of any part of the power. See State v. Sloss, 25 Mo. 291, 69 Am. Dec. 467, and authorities under case note appended to Am. Dec. in this case.

It is not necessary in this case to decide the other questions presented, and this decision does not deal with them. Those questions are reserved for future consideration, should a case hereafter arise.

The judgment of the court is therefore affirmed.

Affirmed.