People v. Bowen (1872) · DecisionDepot

People v. Bowen

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Apr 15, 1872 No. No. 3,023Published

Before: Wallace

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Holding. An executive act that restores a convicted felon to the rights of citizenship without granting a full pardon does not remove the common law disability that renders the felon incompetent to testify as a witness.

Issues

Whether an executive order restoring a convicted felon to the rights of citizenship removes the legal disability preventing the felon from testifying as a witness.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“The executive act under review is not a pardon, nor was it intended to be such. It did not purport to remove the guilt of Davis, nor wipe away the infamy by the law of the land attaching upon him by reason of his conviction.”

“So long as the judgment remains, the guilt it fixes upon the convict is not taken away, and the disability necessarily remains.”

Synopsis

Appeal from the County Court of Sutter County.

The defendant was convicted, and appealed from the judgment and from an order denying his motion for a new trial.

The other facts are stated in the opinion.

By the Court,

Wallace, C. J.: On the trial of the prisoner upon an indictment for the alleged crime of grand larceny, one Davis was permitted to testify as a witness. Davis had been convicted of divers felonies in the Courts of the State, for which he had been adjudged to suffer and had suffered imprisonment in the Penitentiary. The record of these convictions was produced by the prisoner, who thereupon objected that Davis was thereby rendered incompetent to' testify in' the case. It appeared by the records produced and put in evidence by the prisoner in support of his objection, that in July, 1861, by the judgment of the Court of Sessions of the County of Santa Clara, Davis had been duly convicted of the crime of robbery and sentenced to suffer imprisonment in the Penitentiary; that in 1864 he had been duly convicted by the judgment of the County Court of the City and County of San Francisco of the crime of burglary, and again sentenced to imprisonment in the Penitentiary; and that in 1868, in the County Court of Santa Clara, he had been duly convicted of the crime of grand larceny, and by the judgment of that Court again sentenced to undergo punishment therefor by imprisonment in the Penitentiary.

It was conceded below and is conceded here that these convictions of themselves well supported the objection of the prisoner in that behalf. In order to remove the objection and to restore the competency of Davis, the people relied upon and exhibited to the Court an executive act which they claimed removed 'the disability arising from these several convictions, and which is as follows:

[441]“ Whereas, Charles Davis alias Charles Moore has been convicted of criminal offenses against the laws of the State of California, and whereas it is desirable for the attainment of the ends of justice that he should be restored to citizenship; now, therefore) I, H. H. Haight, Governor of said State, do hereby restore said Davis to all the rights of citizenship possessed by him before his conviction for the offenses above referred to. Witness my hand and the great seal of the State at Sacramento this 17th day of March, 1871.

“H. H. HAIGHT, Governor.

[Seal.] “Attest: H. L. Hichols, Secretary of State.”

The Court below being of opinion that the competency of Davis as a witness was thereby restored, thereupon overruled the objection of the prisoner in that behalfj and its ruling in this respect is now brought up for review.

Related research

The power of the Executive of the State to pardon offenses, other than the offense of treason or impeachable offenses, is conferred upon him by the Constitution. (Art. 5, Sec. 13.) His power in that respect is of the same general nature as that conferred upon the President of the United States by the Federal Constitution. (Art. 2, Sec. 2.) It is true that the pardoning power of the President extends to the pardon of offenses before as well as after conviction, while that of the Governor, under the provisions of the State Constitution, embraces only those cases in which a conviction has already been had; and it is also true that, except in cases arising in the military or naval service, the pardoning power of the President is unrestrained by legislative control, while that of the Governor is subject, in its exercise, to such regulations as the Legislature may provide in relation to the manner of applying for pardons; but the inherent nature and operation of the power itself, whether exercised by the one or the other of these officers, and the consequences of its exercise [442]by either in a given case, must be considered to be substantially identical, and as extending its effect not merely to the punishment otherwise inflicted or to be inflicted, but also to the guilt of the offender. “The effect of a pardon (under the rules of the common law) is to make the offender a new man; to acquit him of all corporal penalties and forfeitures annexed to that offense for which he obtains a pardon; it gives him a new credit and capacity; and the pardon of treason or felony, even after conviction or attainder, will enable a man to have an action of slander for calling him a traitor or felon.” (2 Blackstone, p. 402.) Mr. Chief Justice Marshall, speaking of the pardoning power of the President under the provisions of the Federal Constitution, said: “As this power had been exercised from time immemorial by the Executive of that nation whose language is our language, and to whose judicial institutions ours bear a close resemblance, we adopt their principles respecting the operation and effect of a pardon,” etc. (United States v. Wilson, 7 Peters, 159.)

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