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the reasons therefor, within 60 days after the application is referred to it. Its recommendations, however, are of a purely advisory character. After the board has made its recommendation, or failed to do so for more than 60 days, the Governor may grant or refuse the commutation, parole, or pardon, as seems to him best for the public interest." In misdemeanor cases, it is specifically provided that the Governor may grant a pardon even without formal application being made.

Persons eligible.-The constitution makes eligible for executive clemency all persons convicted of any crime except in cases of impeachment."

Persons at liberty on temporary parole 10 and persons convicted of misdemeanor may receive a pardon with or without payment of court costs, in the discretion of the Governor.11

The executive pardon is the only remedy for a defendant, who, unattended by counsel, pleads guilty to the wrong indictment.12

Similarly, a pardon is the only redress where no record of the proceedings in the trial court is incorporated in the transcript on appeal, so that the appellate court cannot find the lower court in error in overruling the motion for a new trial. "To do so (i. e., grant relief) would be an assumption by this court of the pardoning powers." 18

13

"The power of the Governor to reprieve, commute, and pardon is limited to offenses for which there may be conviction and punishment." The nonpayment of taxes is not a criminal offense, and therefore, an act of the legislature absolving a taxpayer from liability for nonpayment is not an invasion of the pardon power.14

14

Procedure: Application.-The exercise of the pardoning power is subject to such "regulations as may be prescribed by law." The legislature has prescribed that any formal ap

Ala. Const. art. V, § 124.

8 Ala. Code Ann. (Michie, Supp. 1936) § 5133 (1).

Ala. Const. art. V, § 124; Ala. Code Ann. (Michie, 1928) § 5127. Until 1901, treason was another exception.

10 See supra Parole.

11 Ala. Code Ann. (Michie, Supp. 1936) § 5133 (1).

12 Harper v. State, 18 Ala. App. 584, 93 So. 273 (1922). 13 Shaw v. State, 21 Ala. App. 387, 110 So. 168 (1926).

14 Mobile and Girard R. R. v. Peebles, 47 Ala. 317 (1872).

plication for pardon be preceded by a 2 weeks' notice of the intention to request a pardon. This notice must be published in a newspaper in the county wherein the prisoner was convicted or resides. If no newspaper is published there, the notice must be posted at the courtroom door in such county or at three other public places therein. A copy of this notice and proof of the publication must accompany the application.15 These requirements are addressed to the applicant. The Governor if he chooses may, no doubt, act even where these requirements have not been met.10

16

Where a defendant is sentenced to death or imprisonment in the penitentiary, the presiding judge, if he is of the opinion that the defendant should be pardoned, may postpone execution of the sentence for such time as may appear necessary to obtain action by the Governor on an application for pardon.17

Procedure: Hearing.-The constitution requires the board to hear petitions in open session.18 Regular meetings are held monthly for hearing applications, but final action is not taken until some days after the hearing. It is the policy of the board not to grant special hearings except for reprieve, or commutation of death penalties or extraordinary emergencies.

Delivery and acceptance.-In order to be complete, a pardon must, in contemplation of law, be delivered and accepted.19 Delivery of a pardon to the warden having custody of the pardoned prisoner has, however, been held constructive delivery to the prisoner. "Being an act of mere clemency, without conditions, the law presumes that it was accepted, in the absence of evidence showing the prisoner's dissent." 20

Conditional pardon.-"It is settled law that this grant (of power to grant pardons) includes power to grant conditional pardons, the condition to be either precedent or

15 Ala. Code Ann. (Michie, 1938) § 5128.

26 As to misdemeanors, the statutes specifically so provide. Ala. Code Ann. (Michie, Supp. 1936), § 5133 (1).

1 Id. (Michie, 1928) § 5321.

18 Ala. Const. art. V, § 124.

Ex parte Powell, 73 Ala. 517 (1883); Michael v. State, 40 Ala. 361 (1867) (failure to plead a pardon constitutes a waiver).

20 Ex parte Powell, 73 Ala. 517, 523 (1883).

the reasons therefor, within 60 days after the application is referred to it. Its recommendations, however, are of a purely advisory character. After the board has made its recommendation, or failed to do so for more than 60 days, the Governor may grant or refuse the commutation, parole, or pardon, as seems to him best for the public interest." In misdemeanor cases, it is specifically provided that the Governor may grant a pardon even without formal application being made.s

Persons eligible.-The constitution makes eligible for executive clemency all persons convicted of any crime except in cases of impeachment."

Persons at liberty on temporary parole 10 and persons convicted of misdemeanor may receive a pardon with or without payment of court costs, in the discretion of the Governor.11

The executive pardon is the only remedy for a defendant, who, unattended by counsel, pleads guilty to the wrong indictment.12

Similarly, a pardon is the only redress where no record of the proceedings in the trial court is incorporated in the transcript on appeal, so that the appellate court cannot find the lower court in error in overruling the motion for a new trial. "To do so (i. e., grant relief) would be an assumption by this court of the pardoning powers.'

99 13

"The power of the Governor to reprieve, commute, and pardon is limited to offenses for which there may be conviction and punishment." The nonpayment of taxes is not a criminal offense, and therefore, an act of the legislature absolving a taxpayer from liability for nonpayment is not an invasion of the pardon power.14

Procedure: Application. The exercise of the pardoning power is subject to such "regulations as may be prescribed by law." The legislature has prescribed that any formal ap

Ala. Const. art. V, § 124.

8 Ala. Code Ann. (Michie, Supp. 1936) § 5133 (1).

Ala. Const. art. V, § 124; Ala. Code Ann. (Michie, 1928) § 5127. Until 1901, treason was another exception.

10 See supra Parole.

11 Ala. Code Ann. (Michie, Supp. 1936) § 5133 (1).

12 Harper v. State, 18 Ala. App. 584, 93 So. 273 (1922).

13 Shaw v. State, 21 Ala. App. 387, 110 So. 168 (1926).

14 Mobile and Girard R. R. v. Peebles, 47 Ala. 317 (1872).

plication for pardon be preceded by a 2 weeks' notice of the intention to request a pardon. This notice must be published in a newspaper in the county wherein the prisoner was convicted or resides. If no newspaper is published there, the notice must be posted at the courtroom door in such county or at three other public places therein. A copy of this notice and proof of the publication must accompany the application.15 These requirements are addressed to the applicant. The Governor if he chooses may, no doubt, act even where these requirements have not been met.10

Where a defendant is sentenced to death or imprisonment in the penitentiary, the presiding judge, if he is of the opinion that the defendant should be pardoned, may postpone execution of the sentence for such time as may appear necessary to obtain action by the Governor on an application for pardon.17

Procedure: Hearing.-The constitution requires the board to hear petitions in open session.18 Regular meetings are held monthly for hearing applications, but final action is not taken until some days after the hearing. It is the policy of the board not to grant special hearings except for reprieve, or commutation of death penalties or extraordinary emergencies.

Delivery and acceptance.-In order to be complete, a pardon must, in contemplation of law, be delivered and accepted.1 Delivery of a pardon to the warden having custody of the pardoned prisoner has, however, been held constructive delivery to the prisoner. "Being an act of mere clemency, without conditions, the law presumes that it was accepted, in the absence of evidence showing the prisoner's dissent." 20

Conditional pardon.-"It is settled law that this grant (of power to grant pardons) includes power to grant conditional pardons, the condition to be either precedent or

15 Ala. Code Ann. (Michie, 1938) § 5128.

16 As to misdemeanors, the statutes specifically so provide. Ala. Code Ann. (Michie, Supp. 1936), § 5133 (1).

17 Id. (Michie, 1928) § 5321.

18 Ala. Const. art. V, § 124.

"Ex parte Powell, 73 Ala. 517 (1883); Michael v. State, 40 Ala. 361 (1867) (failure to plead a pardon constitutes a waiver).

Ex parte Powell, 73 Ala. 517, 523 (1883).

subsequent, and of any nature so long as it is not illegal, immoral, or impossible of performance; and that a breach of the condition avoids and annuls the pardon.

99 21

Commutation.-Under the constitution, the Governor has the broad power to grant "commutations of sentence." 21a It is provided by statute that he may commute a death sentence to imprisonment in the penitentiary, or to hard labor for the county, "for not less than 2 years.' " 22 Whether this limitation on the Governor's power to commute punishments is constitutional has not been decided.

When sentence is commuted, the Governor certifies a statement of the commutation to the clerk of the court in which the conviction was had. The clerk is directed to enter the commutation of record at the next ensuing session under the direction of the presiding judge. The commuted sentence is then executed as if it had been rendered by the court. 23

Revocation. The legislature may provide that on violation of the conditions, the person conditionally pardoned shall be considered an escaped convict and may be recommitted without a hearing.2

24

Effect of pardon.-By constitutional provision, in cases of felonies and offenses involving moral turpitude, a pardon does not relieve the person pardoned from civil and political disabilities, unless approved by the board of pardons and specifically expressed in the pardon.25

Where a person has been sentenced to fine and imprisonment, his pardon must specifically mention the fine to release him there from. Otherwise, the pardon will be construed to release him from the imprisonment only.26 A par

21 Fuller v. State, 122 Ala. 32, 37, 26 So. 146, 147 (1898).

21a Ala. Const. art. V, § 124.

22 Ala. Code Ann. (Michie, 1928) § 5129.

23 Id. § 5130. The failure of the clerk to record the statement of commutation does not affect the validity or legality of the commutation or its admissibility as evidence. Johnson v. State, 183 Ala. 79, 63 So. 163 (1913).

24 Fuller v. State, 122 Ala. 32, 26 So. 146 (1898).

Under

25 Ala. Const. art. V, § 124; Ala. Code Ann. (Michie, 1928) § 365. older constitutions, not containing this provision, the court held that a full pardon restored competency as a witness, though not so stated in the pardon. Yarborough v. State, 41 Ala. 405 (1868).

20 State v. Richardson, 18 Ala. 109 (1850).

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