habeas corpus proceeding may inquire into this question and remand the person to his former condition of imprisonment if the allegation of fraud is sustained.18 Commutation.-Both the constitution and the statute include the power to "commute penalties" as part of the Governor's pardoning power.19 It might be mentioned that the Georgia "good time" law is also referred to as "commutation" for good behavior.20 Parole. Although not mentioned in the constitution, parole is administered as a phase of executive clemency.21 Reprieve. The Governor's power includes the granting of reprieves. 22 By rule of the prison commission, no respites or reprieves are granted except in capital cases, and then only when the application cannot be fully considered and disposed of before the date fixed for the execution.28 Effect of pardon.-A pardon removes disqualifications incident upon conviction, so that the pardoned person is again eligible to vote and hold office.24 Under a divorce law providing that conviction of a crime involving moral turpitude and resulting in a sentence to imprisonment for 2 years or more is a ground for divorce, a pardon does not destroy this ground even though sought to be asserted after the pardon was granted.25 GOOD-TIME DEDUCTIONS History. The first statutory provision for good-time allowance to prisoners of the Georgia Penitentiary was enacted in 1856.1 Under that law the superintendent of the penitentiary was required to keep a record of the conduct of prisoners sentenced for 2 years or more. If the conduct of any prisoner was "unexceptionable" his sentence was to be reduced by 2 days for each month served. 18 See Dominick v. Bowdoin, 44 Ga. 357, 365 (1871). 19 Ga. Const. art. V, § 1, par. XII; Ga. Code (1933) § 27-2701. 20 Ga. Code (1933) § 77–341. The Governor must approve all paroles granted. Applications for paroles are entitled "application for executive clemency." See ante, Parole. Ga. Const. art. V, § 1. "Rules Governing Application for Executive Clemency (1934) rule 6. 24 Ga. Const. art. II, §§ 2, 4. "Holloway v. Holloway, 126 Ga. 459, 55 S. E. 191 (1906). 1 Ga. Laws 1856, p. 266, No. 203. In 1874 the good-conduct allowance was increased to 4 days for each month served.2 In 1887 the existing good-time law was repealed and the law now in effect was enacted.3 A grading system was provided for in 1908, and a classification system for prisoners at the State farm was required by a 1931 enactement." By whom administered.-The prison commission is responsible for the establishment of a system of grades of behavior." The superintendent of each penitentiary camp is charged with the duty of recording good conduct. He must report such good conduct monthly to the prison commission. On the basis of such reports the good-time deductions are determined. Persons in charge of chain gangs of misdemeanants must keep a record of the good conduct of such prisoners.” Persons eligible.-Any convict in the penitentiary, except one imprisoned for life, may begin the accumulation of good time during and after the second year of his sentence.10 Any misdemeanant in a chain gang is eligible for good conduct deductions during the time actually served on the chain gang 1 but not for time served outside the chain gang on probation.1 12 Amount of deduction. The provision is made that “each convict who shall demean himself uprightly and well shall have deducted, from the time for which he may have been sentenced, 2 months for the second year, 3 months for each 2 Ga. Laws 1874, p. 23. Ga. Laws 1887, p. 38. Ga. Laws Special Sess., p. 122. For the membership of this body see supra Parole p. 269, note 12. "The different grades of behavior shall be plainly distinguished by dress, or emblem thereon, so that each convict and all persons coming in contact with any convicts may at once be able to determine to which grade of behavior said convict belongs." Ibid. 8 Id. § 341. Id. § 210. 10 Id. § 341. 11 Id. § 210. 12 Green v. Adams, 170 Ga. 632, 153 S. E 762 (1930)); McConnell v. Floyd County, 164 Ga. 177, 137 S. E. 919 (1927). subsequent year until the tenth year, inclusive, and 4 months for each remaining year of the time of imprisonment.13 In case of a prisoner serving concurrent sentences, deduction is made only from one, or the longer sentence.11 In the case of a misdemeanant serving on a chain gang, the deduction for good conduct is 4 days for each month served.15 EXPIRATION OF SENTENCE Effect of release.-A constitutional provision states that one convicted of any of certain crimes1 cannot vote or hold public office unless he be pardoned.2 Discharge gratuities.-There is no statutory provision for gratuities of any kind for discharged prisoners, but as a matter of practice such prisoners are given clothing valued at $8 and a railroad or bus ticket to the point of conviction. IDAHO SUSPENSION OF SENTENCE Suspension of sentence at common law.-Idaho courts have no common law power to suspend imposition of sentence for an indefinite length of time. Neither do they have the power at common law to suspend execution of sentence, although when execution of sentence is suspended . without authority, the court does not lose jurisdiction to enforce the sentence subsequently." 13 Ibid. 14 Chattahoochee Brick Co. v. Goings, 135 Ga. 529, 69 S. E. 865 (1910). 15 Ga. Code Ann. (Park, Skillman, and Strozier, 1936) title 77, § 210. 1 Treason, embezzlement of public funds, malfeasance in office, bribery or larceny, or a crime of moral turpitude punishable by imprisonment in the penitentiary. Ga. Const. art. 2, § 2. See also, Ga. Code (Park, Skillman, and Strozier, 1936) title 34, § 9907, par. 5. Ibid. 1 In re Grove, 43 Idaho 77, 254 Pac. 519 (1927). But see State v. Poynter, 34 Idaho 504, 205 Pac. 561 (1921) where the court said that the failure of the trial court to impose imprisonment in addition to a fine in a case where the statute required punishment by both fine and imprisonment, did not invalidate the judgment. Whether the courts have the power to suspend imposition of sentence at common law for a definite time has not been decided. In re Peterson, 19 Idaho 433, 113 Pac. 729 (1911); In re Jennings, 46 Idaho 142, 267 Pac. 227 (1928). State v. Ensign, 38 Idaho 539, 223 Pac. 230 (1924); In re Jennings, 46 Idaho 142, 267 Pac. 227 (1928). Contra: In re Peterson, 19 Idaho 433, 113 Pac. 729 (1911). Statutes. By statute courts of Idaho are allowed to suspend either the imposition or execution of sentence. Since this statute also authorizes probation in connection with the suspension, it will be treated under probation. PROBATION Historical development.-The statute in Idaho authorizing suspension of sentence and probation, as originally enacted in 1915 applied only to persons under 25 who were first offenders. It excepted from its application certain major offenses.1 It authorized placing the defendant on probation in the charge of one of the probation officers of the juvenile court of the county in which the court was sitting or of any other proper person selected for that purpose.2 2 In 1919 the statute was amended to apply to persons over 25 and certain major crimes were omitted from the enumeration of exceptions. In 1929 the act was amended to apply to all crimes except treason and murder.* Originally the law provided for discharge from probation only at the end of the longest period for which the defendant might have been sentenced. In 1919 the court was given discretion to discharge the defendant at the end of a period equal to the minimum sentence imposed, or equal to the minimum sentence prescribed by statute for the offense, or it could discharge at the end of the maximum period of sentence. Other provisions of the present law remain substantially the same as when originally passed. Administrative organization.-Suspension of sentence and probation is entirely in the hands of local county courts. Supervision of probationers may be by a probation officer "of the juvenile court of the county in which the court is sitting or other probation officers, or of any other proper person selected and designated for that purpose." Super 1 Treason, murder, robbery, and all classes of rape except statutory rape, incest, bigamy, abortion, arson, perjury, and embezzlement of public funds. Idaho Laws 1915, ch. 104, § 1, p. 244. Id. 1919, ch. 134, § 1, p. 428. Incest, bigamy, and perjury were dropped from the list of exceptions. Id. 1929 ch. 97, § 1. Id. 1915, ch. 104, § 1, p. 245. Id. 1919, ch. 134, § 2, p. 429. 7 Idaho Code Ann. (1932) § 19–2501. vision is often entrusted to parents or friends of the accused and is informal. Procedure. The district court may, in its discretion "commute the sentence and confine the defendant in the county jail, or if he is of proper age, in the State industrial school," suspend either the execution or imposition of sentence on such terms and for such time as it may prescribe, and, in either event may place the defendant on probation in the charge of a juvenile court probation officer in the county or of any other designated person or officer. The provisions of the law must be exercised by the court at the time of the rendition of the judgment, and the probation or suspension of sentence must be included in the judgment. The authority of the act cannot be invoked at a date subsequent to the time of judgment.10 The court is required to make the annual reports of a probationer a part of the court record of the case and enter an order approving or rejecting the same.11 Even the statutory requirement that the defendant appear and report in court once a year is in practice often not enforced. See infra, Terms and Conditions. Idaho Code Ann. (1932) 19-2501. Probate and justice courts may also suspend the imposition or execution of sentence and, in that event may place the defendant on probation. Id. § 19-4021, as amended Idaho Laws 1937, ch. 60. Before this amendment probate or justice courts could not suspend sentence. Opinions Att'y Gen. (1929-30) 139. But where a probate court suspended sentence without authority it did not lose jurisdiction to enforce the sentence. In re Jennings, 46 Idaho 142, 267 Pac. 27 (1928). Cf. State v. Ensign, 38 Idaho 539, 223 Pac. 230 (1924). Although under this law the Judge of the district court is authorized to exercise the powers conferred in chambers, Idaho Code Ann. (1932) § 19-2507, as a matter of practice hearings are held and orders made in open court. 10 State v. Ensign, 38 Idaho 539, 223 Pac. 230 (1924). But jurisdiction to order execution of the sentence is not lost although the suspension was made too late. Ibid. Furthermore, it is common practice for the district court to order commitment of the defendant for a month or two and at the same time order suspension of the sentence and release of the defendant on probation at the end of the jail term. In some instances this order of future release is executed automatically; in others an application by the prisoner for parole is required, and the court may or may not grant a release. In the former instance, the rule of the Ensign case would not seem to be violated; though it would in the latter. However, the question is more properly treated under Parole. 11 Idaho Code Ann. (1932) § 19-2503. In practice it appears, however, that such orders are not entered. |