People v. Biggs

This is an appeal from a judgment and order denying appellant’s motion for new trial, after conviction of grand theft, with two prior convictions of felony.

Defendant and appellant Groseelose conspired with defendant Biggs and one James Bridger to stage a purported automobile accident in order to defraud several insurance companies. They succeeded in carrying out their object, and appellant collected substantial sums on two accident policies, and a further substantial sum by settlement with the insurance carrier which had insured defendant Biggs, the driver of the car, against public liability. The evidence was clearly sufficient to establish the commission of the offenses, and need not be reviewed here. Two minor objections are raised by appellant: asserted insufficiency of the corroboration of the testimony of the accomplice Bridger, and alleged impropriety in permitting amendment of the information to conform to proof as to the date of the commission of the .offense and the sum of money involved. There is no merit in either point and discussion of them is unnecessary.

A question of grave importance, and one which has never been decided in this state, is the main issue on this appeal, and it was in order to give full consideration to this

Our statutes, like most of the acts in other states, are silent on this point. They refer simply to prior “convictions” or to persons previously “convicted”, making no other qualification or explanation save that the defendant must have served a term of imprisonment therefor. (See Pen. Code, secs. 644, 666, 667; see, also, secs. 668, 1168, which do not require service of a term of imprisonment.) This fact would in itself appear to be an answer to appellant’s contention, for if he has suffered prior convictions, he comes within the classification of persons who are to be subjected to heavier punishment for subsequent offenses, and must be so punished. It is immaterial that the statutes do not expressly refer to persons pardoned after conviction, since by failure to exclude them, they are obviously included within the general provisions. This is a necessary conclusion from the language of the statutes, and it is determinative of the present case unless there is something in the nature of a pardon which compels a different interpretation. It should be borne in mind, in this connection, that the question is solely one of the legislative intent; the constitutional power of the legislature to impose a heavier penalty for the subsequent conviction, despite a

Appellant relies largely upon a number of declarations by various authorities as to the general effect of a pardon. The following are examples: “The power to pardon is something more than the power to release from servitude. Pardon is the remission of guilt, amnesty, oblivion or forgetfulness.” (People v. Hale, 64 Cal. App. 523 , 533 [ 222 Pac. 148 ].) “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 ...” (People v. Bowen, 43 Cal. 439 , 442 [ 13 Am. Rep. 148 ], quoting from Blackstone’s Commentaries.) “A pardon reaches both the punishment prescribed for the offence and the guilt of the offender; and when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offense ... if granted after conviction, it removes the penalties and disabilities, and restores him to all his civil rights; it makes him, as it were, a new man, and gives him a new credit and capacity.” (Ex parte Garland, 4 Wall. 333 , 380 [ 18 L. Ed. 366 ].) Similar expressions may be found in numerous other cases.

But the somewhat extravagant language occasionally employed must be contrasted with the actual decisions of the courts. It is universally established that a pardon exempts the individual from the punishment which the law inflicts for the crime which he has committed; and generally speaking, it also removes any disqualifications or disabilities which would ordinarily have followed from the conviction. To say, however, that the offender is “a new man”, and “as innocent as if he had never committed the offense”, is to ignore the difference between the crime and the criminal. A person adjudged guilty of an offense is a convicted criminal, though pardoned; he may be deserving of punishment, though left unpunished; and the law may regard him as more dangerous to society than one never found guilty of crime, though it place no restraints upon him following his conviction. The criminal character or habits of the individual, the chief postulate of habitual criminal statutes, is often as clearly disclosed by a pardoned conviction as by one never condoned. The

Statutes imposing increased punishment for prior offenders are not new, and they have been before the courts on many occasions. The distinction pointed out above, between the offense and the offender, has been repeatedly emphasized. One of the apt illustrations is found in the contention that these statutes -are unconstitutional, as ex post facto laws or for some other reason. The uniform answer has been that it is the second or subsequent offense which is punished, not the first; and that in determining the nature of the penalty to be inflicted, the legislature is justified in taking into consideration the previous criminal conduct of the defendant. (See In re Rosencrantz, 205 Cal. 534 [ 271 Pac. 902 ]; McDonald v. Massachusetts, 180 U. S. 311 [ 21 Sup. Ct. 389 , 45 L. Ed. 542 ]; note, 58 A. L. R. 20 ; 11 Minn. L. Rev. 561 .)

With respect to the precise question before us, namely, the effect of a pripr conviction which has been pardoned, the courts are in conflict; but perhaps the weight of authority, and certainly of critical opinion, is to the effect that the pardon is immaterial, and that the defendant may bo adjudged a prior offender and given the increased punishment as such. (See People v. Carlesi, supra (affirmed, 208 N. Y. 547 [ 101 N. E. 1114 ]; 233 U. S. 51 [ 34 Sup. Ct. 576 , 58 L. Ed. 843 ]); People v. Murphy, 224 App. Div. 834 [ 279 N. Y. Supp. 762 ]; Mount v. Commonwealth, 2 Duvall, [63 Ky.] 93; Herndon v. Commonwealth, 105 Ky. 197 [ 48 S. W. 989 , 88 Am. St. Rep. 303 ]; State v. Edelstein, 146 Wash. 221 [ 262 Pac. 622 ]; 16 C. J. 1342, sec. 3157; note, 58 A. L. R. 20 , 49; 13 Columb. L. Rev. 418; 14 Minn. L. Rev. 293 ; 78 U. Pa. L. Rev. 561 ; 28 Harv. L. Rev. 647 , 655; 41 Harv. L. Rev. 918 ; 5 Fordham L. Rev. 166 ; 3 So. Cal. L. Rev. 438; 22 Journ. Crim. Law 122.) As the court states, in People v. Carlesi, supra, 139 N. Y. Supp. 309 , 312: “The pardon of this defendant did not ‘make a new man’ of him. It did not ‘blot out’ the fact or the record of his conviction . . . The pardon in this case merely restored the defendant to his civil rights. If it had been granted be

The other view, holding that the pardoned offense cannot be considered, is based upon the literal application of the theory that the pardon “blots out guilt”, and “wipes out the offense”, which is then regarded as never having been

Our own decisions do not, despite such general remarks as we have already quoted, accept this extreme view in its entirety. Thus, a witness may be impeached by proving his conviction of a felony, though he may offer evidence of the pardon in rehabilitation. (People v. Hardwick, 204 Cal. 582 [ 269 Pac. 427 , 59 A. L. R. 1480 ]; see 16 Cal. L. Rev. 161 ; 1 So. Cal. L. Rev. 200; 2 Wigmore, Evidence, 2d Ed., sees. 980, 1116.) And a pardon of a convicted felon, as recently declared by this court, “does not restore his character”, and “does not obliterate the act itself”. “The verj essence of a pardon is forgiveness or remission of penalty. (State v. Hazzard, 139 Wash. 487 [ 247 Pac. 957 , 47 A. L. R. 538 ].) It implies guilt and does not wash out the moral stain.” (In re Lavine, 2 Cal. (2d) 324 , 329 [ 41 Pac. (2d) 161 , 163].) In the Lavine case, supra, wherein an attorney disbarred for a misdemeanor conviction sought reinstatement after securing a full pardon, .the application was held insufficient in the absence of a showing of moral rehabilitation. We pointed out that the broad language of Ex parte Garland, supra, has been greatly limited and sometimes repudiated by later eases. (See, also, 4 Cal. L. Rev. 236 .)

After a full consideration of the expressions of the courts, both in this and other jurisdictions, we are satisfied that the contention of appellant cannot be sustained. We are unable to see how the pardon, relieving the offender from the effects or disabilities of his first crime, can in addition prevent the normal ápplication of the statute punishing him for a subsequent offense. In its provisions for increased punishment for prior offenders, the legislature could doubtless make an exception in favor of persons pardoned, if it had reason to believe that such persons, though found guilty of a subsequent offense, were no more dangerous to society, because no more criminal in character, than persons first convicted. It has not seen fit to do so, and unless it does, this court cannot usurp the legislative function of determining the appropriate punishment for offenders coming within the statutory classifications.

The judgment and order are, and each is, affirmed.

Curtis, J., Shenk, J., Seawell, J., and Nourse, J., pro tem., concurred.

Edmonds, J., concurred in the judgment.

Rehearing denied.