In Re Petition of Dormitzer

The petitioner complains because he was not allowed to file an answer to the return of the sheriff. He filed a paper denominated a demurrer which in reality went to the merits of the issues joined by the return to the writ. It is optional with the trial court to permit a litigant to file an answer after having demurred to a pleading. The trial court did not abuse its discretion in dismissing the writ after deciding the issues raised by the demurrer.

The petitioner further contends that the favor granted Edmunson by the Governor was an unconditional pardon. This contention cannot be sustained. Regardless of the correct definition of the word "reprieve" as used by the Governor and regardless of the proper office of a reprieve, the grace shown the prisoner by the Governor cannot be construed as a pardon. The clemency exercised by the Governor operated to suspend the execution of the sentence of the court but does not embody the necessary elements of a pardon.

The word "reprieve" in its general sense means: "A temporary suspension of the execution of a sentence, especially of a sentence of death, or the order or warrant for such suspension." Webster's International Dictionary. "A reprieve is the withdrawing of a sentence for an interval of time whereby the execution is suspended." 29 Cyc. 1561. In its restricted or technical application the word "reprieve" is limited to a temporary suspension of a sentence of death: State v. Finch,54 Or. 482, 497-498 (103 P. 505); State v. Heller,63 N.J.L. 105 (42 A. 155, 57 L.R.A. 312, 315-317); In reBuchanan, 146 N.Y. 264 (40 N.E. 883).

But the word "reprieve" has been used in the opinion of courts in its broader sense. In State v. Hawk, 47 W. Va. 434, 435 (34 S.E. 918), which was not a capital case, but one in which the defendant was sentenced to imprisonment for twelve years, the court uses this language:

"The power to pardon necessarily includes the power to reprieve or suspend the sentence until the matter can be inquired into and determined. At common law the power to reprieve was lodged in the courts, as the representatives of the king, he being considered the very fountain of justice; and he was never called upon to exercise it except in capital cases of necessity. * * Because the king was never personally called upon to exercise the power of reprieve, owing to the authority delegated by him to his courts, except in capital cases, has grown up the theory that he had no such power. * * That he had the power to reprieve or suspend sentence in any case of necessity, there cannot be the least doubt."

Regardless of whether or not the Governor exceeded his authority in granting the so-called reprieve, Edmunson has no ground for complaint. He accepted the favor of the Governor and was thereupon released from jail. He treated the leniency of the Governor with the same contempt that he had treated the law of the state and must suffer the consequences. The Governor did not issue any judgment or sentence against the defendant but merely canceled the temporary suspension of the jail sentence inflicted by the court after trial. If the Governor's act was a nullity, as contended by the state, the proper authorities had the right to reincarcerate Edmunson. If the Governor had the authority to grant the suspension of the jail sentence on condition, he had a right to revoke his merciful order which would operate to remand Edmunson to jail to serve the remainder of his sentence.

It was urged in behalf of Edmunson that the order of the Governor suspending the jail sentence operated to prevent him from taking an appeal. Edmunson had the right to accept or reject the "reprieve." He was not thereby prevented from appealing if he desired to do so: 29 Cyc. 1565, par. 2.

The judgment is affirmed. AFFIRMED.

McBRIDE, C.J., and BURNETT and BEAN, JJ., concur.