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stantially deprive the chief executive of this power. A legislative act prohibiting the Governor from granting any pardon except upon application and publication of notice was accordingly held valid."

Moreover, the courts have power to inquire whether the legislative requirements have been met, and if not, to declare the pardon void.3

The Governor is required to communicate to the general assembly at every regular session each case of reprieve, commutation, or pardon, with his reasons therefor, stating the name and crime of the convict, the sentence, its date, and the date of the commutation, pardon, or reprieve.1

The Governor's power is further limited to granting clemency to individuals under sentence or judgment for crime, penalty, or forfeiture, and does not extend to the granting of general amnesty, or relief from civil penalties and forfeitures.5

While the Governor has no power to grant a pardon before conviction, the legislature has. Such an act is not an invasion of the executive power (there being no power in the executive to grant pardons before conviction). And at least if the act of the legislature occurs before indictment, it is no interference with the judiciary, whose jurisdiction has not yet attached."

Board of pardons and paroles.-In 1937 the State penal board was declared to be a board of pardons and paroles, with power to grant paroles and to "investigate and consider all applications for executive clemency and make recommendations thereon to the Governor."7

2 The phrase in the constitutional provision, "under such terms and regulatlons as shall be prescribed by law," refers to the entire sentence. ""The fact that a semicolon follows the word 'conviction' instead of a comma, as in the similar clause of the constitution of 1836, cannot be treated as altering the meaning of the sentence." Hutton v. McOleskey, 132 Ark. 391, 394, 200 S. W. 1032 (1918); Horton v. Gillespie, 170 Ark. 107, 279 S. W. 1020 (1926). 3 Horton v. Gillespie, 170 Ark. 107, 279 S. W. 1020 (1926). Ark. Const. art. VI, § 18; Ark. Dig. Stat. (Pope, 1937) § 5396. Hutton v. McClesky, 132 Ark. 391, 200 S. W. 1032 (1918) (general remission by the Governor of the statutory penalty imposed on owners who failed properly to assess their property held invalid).

State v. Nichols, 26 Ark. 76 (1870) (legislative "Act of Pardon and Amnesty" of 1867 upheld).

Ark. Dig. Stat. (Pope, 1937) § 12773.

Persons eligible.-The executive pardoning power may be exercised only "after convicton" except in case of impeachment. In cases of treason, the advice and consent of the senate must be obtained. The phrase "after conviction" is construed to be after conviction in a lower court. Thus, the Governor may grant a pardon while the case is pending on appeal.s

Procedure. It will be recalled that the constitutional grant of the pardoning power to the Governor provides that it shall be exercised "under such rules and regulations as shall be prescribed by law." Acting under this provision the legislature has prescribed in some detail the manner in which the power of clemency may be exercised. For example, it has prohibited the Governor from considering any application for clemency "until there is filed in his office a certificate of the county clerk, or the affidavit of two persons known to be credible, that the application has been published as hereinafter provided." The statute goes on to prescribe that in all felonies, and in the offenses of wife-beating, unlawful carrying of weapons and unlawful sales of liquor, an application, "setting forth the grounds upon which the pardon is being asked, together with the list of signers or petitioners uniting in the request for pardon, must be published in two insertions in a weekly paper, if one be published therein, in the county where the conviction was had, or, if the conviction was had in a county other than that in which the offense took place, then in both counties." In other cases publication may be made by posting on the courthouse door of the county or counties for a period of 10 days prior to the presentation of the application to the Governor."

The Governor has the right to grant a pardon without publication when he acts on his own initiative or is prompted thereto by the result of an investigation made at his instance. But in such case the Governor must state on the face of the certificate that it was granted by him without application being made to him by any attorney or paid representative of the person pardoned. Also, when it appears that the applicant is unable to pay for publication,

Ark. Const. art. VI, § 18; Cole v. State, 84 Ark. 473, 106 S. W. 673 (1907). Ark. Dig. Stat. (Pope, 1937) §§ 4218-4220.

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and is not represented by paid attorneys, the Governor in his discretion may grant the pardon without the publication requirement being complied with.10

It is declared to be a misdemeanor punishable by fine of from $100 to $500, for anyone to present an application for a pardon to the Governor without first having complied with the requirement for publication." The courts may inquire as to whether or not there has been compliance.12 If there has not been, and if there is no recital on the face of the pardon to show that it is an exception, as provided by the statute, the pardon is void. A court of chancery may not reform the instrument to incorporate this recital nor may an acting Governor do so after his authority as Governor has ceased.13

The 1937 act creating an advisory pardon board, authorizes the board to "make such rules and regulations covering procedure as are not inconsistent with the law."

Pleading and proof.—It is not admissible to prove a pardon by parole evidence without showing that the pardon itself, or a certified copy of it, could not be introduced.15

Effect of pardon.-The legal effect of a pardon is to restore the convict at once to the right of liberty and citizenship. 16 A pardoned convict is restored to his former capacity to testify as a witness, but the fact of conviction may still be urged against his credibility." A later case holds that a pardon removes "every vestige of infamy" and places the defendant "in statu quo in his relations to the State." But it seems that the court was referring only to the rights of citizenship.18

A pardon absolves the defendant from the necessity of paying an imposed fine to the State. Likewise, it takes

10 Id. 4221.

11 Ibid.

12 Horton v. Gillespie, 170 Ark. 107, 279 S. W. 1020 (1926).

13 Nelson v. Hall, 171 Ark. 683, 285 S. W. 386 (1926); Horton v. Gillespie,

170 Ark. 107, 279 S. W. 1020 (1926).

14 Ark. Dig. Stat. (Pope, 1937) § 12773.

15 Redd v. State, 65 Ark. 475, 40 S. W. 374 (1898).

16 Ex parte Hunt, 10 Ark. 284 (1850).

17 Werner v. Stat, 44 Ark. 475, 40 S. W. 374 (1898) (a full pardon may be one which designates the particular offenses for which the defendant was convicted and any recital that the defendant is restored to his rights of citizenship is superfluous).

18 Redd v. State, 65 Ark. 475, 40 S. W. 374 (1898).

away the criminal character of the judgment for costs, preventing their collection by imprisonment, but leaves in force the judgment of costs to be collected as a civil debt.10

Delivery.-A pardon takes effect upon its delivery to the defendant or his representative. Acceptance is presumed in the absence of any proof to the contrary.20 So a warden who refused to discharge a convict immediately upon the latter's receipt of a pardon from the Governor was guilty of false imprisonment.21 So, too, where the defendant was pardoned after he had paid his fine to the sheriff, but before the latter had paid it into the treasury of the county, it was held that title to the money had not vested in the county and the sheriff must refund it.22 And where defendant had paid the sheriff by delivering to him his promissory note for the fine, the note was not collectible after the Governor had granted the maker a full pardon, the note not being payment of the fine which, therefore, had not passed beyond the pardoning power.23

Conditional pardon.-The Governor has the constitutional power to pardon convicts upon such conditions and restrictions as he deems proper.24 Under this unrestricted power, "he has the right to attach to his pardon any condition, precedent or subsequent, provided it be not illegal, immoral, or impossible to be performed." 25

In addition to this general power, the Governor, by a statute in effect from 1838 to 1935, has specific authority to grant a pardon on condition that the convict leave the State. and never return. A person pardoned on such a condition. who was found within the State more than 10 days thereafter had to serve his full sentence over again, losing all time served prior to being pardoned.20 This provision did

19 Villanes v. State, 105 Ark. 471, 151 S. W. 1022 (1912); Edwards v. State, 12 Ark. 122 (1851); Ex parte Purcell, 61 Ark. 17, 31 S. W. 738 (1895).

20 Redd v. State, 65 Ark. 475, 40 S. W. 374 (1898).

Weigel v. McCloskey, 113 Ark. 1, 166, S. W. 944 (1914).

22 Fishel v. Mills, 55 Ark. 344, 18 S. W. 237 (1892).

23 Baldwin v. Scroggin, 15 Ark. 427 1855).

24 Ex parte Hunt, 10 Ark. 284 1850); Baldwin v. Scroggin, 15 Ark. 427 (1855); Ex parte Hawkins, 61 Ark. 321, 33 S. W. 106 (1895).

25 Ex parte Hawkins, 61 Ark. 321, 324, 33 S. W. 106 (1895).

26 Ark. Dig. Stat. (Crawford & Moses, 1921) §§ 3375-3379. A reward of $200 was provided for the arrest of any convict so pardoned who was found within the State after a 10-day period. Ibid. Pardons granted under this statute have been held not to violate the constitutional prohibition against the infliction of exile. Ex parte Hawkins, 61 Ark. 321, 33 S. W. 106 (1895).

not, however, restrict the Governor's discretionary power, and if the pardon did not follow the conditions set forth in the statute, it was to be construed to have been issued under the general pardoning power, and not under this statute. Thus, if a convict pardoned with the condition to leave the State, but with no reference to return, did leave but later returned, he was not guilty of a violation.”7 In 1935 the legislature repealed the provisions authorizing pardon upon condition that the prisoner leave the State and never return.28

Revocation.-On breach of a conditional pardon and conviction thereof, the former judgment of conviction is restored to its full force and effect.29

Restoration to citizenship.-While full pardon restores citizenship, it is the practice in Arkansas to refer to pardons granted after the expiration of sentence for the sole purpose of restoring political rights as "restorations to citizenship." Twenty to forty such restorations are granted annually, as compared with only three full pardons in 8 years (1928–35).

Furloughs.-Beginning about 1924, it has been the practice of the Governor to grant both definite and indefinite furloughs. The practice does not seem to be based upon any specific statutory or constitutional authority. No supervision of any kind is provided for men released on furlough. "Furloughs are granted by the Governor, with the assistance of his secretary and a full-time clerk. Temporary furloughs of 30 to 90 days, usually 60 days, are used to enable prisoners to attend funerals, harvest the crops, etc. There are no regulations as to the time which must be served before a 'furlough' is granted. Indeed, they are sometimes granted before the convicted defendant reaches the penitentiary." It has been suggested that furlough is in the nature of a conditional pardon, also that it is a form of reprieve. It appears that a furlough is neither of these things, but is a commutation of sentence which the Governor by the constitution is authorized to give. In upholding the "indefinite furlough," the court states: "It is true that the word 'fur

Ex parte Hunt, 10 Ark. 284 (1850).

28 Ark. Acts 1935, No. 60.

*Ex parte Brady, 70 Ark. 377, 68 S. W. 34 (1902).

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