Mr. Circuit Judge Henry
¶1
(concurring) : In concurring in the filed opinion of Mr. Associate Justice Cothran, herein, my reasons therefor are herebelow stated:
¶2
Man, in his effort to protect the individual by organized government, provided in this organization for a sovereign, in America called executive. At first this sovereign was supposed “to do no wrong.” Gradually, by revolution and strife, it was determined that the sovereign ought to do no wrong; next, that he will do- no wrong; finally, by enactments of Parliament, he shall do- no wrong. Hence his powers were hedged about by law, fixing so plain a path for his feet that he could do no wrong. Traveling in this path brings us back to the original truism, the sovereign can do no wrong, because hedged about by law.
¶3
So- far as Ben Bess is concerned, the Governor has followed an uncharted path, and consequently has done wrong. After pardoning Bess and reincarcerating him, it is the same as if an individual had made a deed of property, and, finding it had been obtained by fraud and deceit, repossessed himself of the property without due process of law or by force.
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Case posture Posture Before TOWNSEND, J., Richland, August, 1928. Reversed, and the prisoner discharged.Habeas corpus proceeding by Sallie Bess against Jas. N. Pearman, superintendent of the penitentiary, for an order discharging Ben Bess from the custody of the respondent. From the decree, Ben Bess appeals.
The petition, the return, the master's report, the order of the lower Court, and appellant's exceptions follow:
PETITION FOR WRIT OF HABEAS CORPUS
To Hon. W.H. Townsend, Judge of the Fifth Judicial Circuit:
The petition of Sallie Bess respectfully shows the Court:
I. That she is a resident and citizen of South Carolina and the wife of Ben Bess, who is now imprisoned or restrained in his liberty by Hon. James N. Pearman, superintendent of the South Carolina penitentiary, being confined in the said penitentiary, Columbia, South Carolina.
II. That the said Ben Bess is not committed or detained by virtue of any process issued by any Court of the United States, or any Judge thereof, in any case where such Courts or Judges have exclusive jurisdiction by the commencement of suits in such Courts; nor by virtue of the final judgment or decree of any competent tribunal of civil or criminal jurisdiction, nor by virtue of any execution issued upon such judgment or decree.
III. And your petitioner avers that Ben Bess is utterly ignorant of the cause or pretense of such confinement or restraint, and believes it is without legal cause or warrant.
IV. And your petitioner further states that she is advised and verily believes that the imprisonment of Ben Bess is illegal, and that such illegality consists in his imprisonment without due process of law, and in the manner and method thereby prescribed.
V. And your petitioner further states that she is forced to make this petition for the reason that the said Ben Bess
is held in said penitentiary without the privilege of seeing any one, being even denied his legal right of consulting with counsel, although he has sought such counsel, and desires his liberty and freedom.
Wherefore, your petitioner prays that a writ of habeas corpus do issue to bring the said Ben Bess before your Honor that the cause of his imprisonment or restraint of liberty be inquired into, and such further proceedings may be had thereon as are agreeable to law and justice.
RETURN TO WRIT OF HABEAS CORPUS
To the Honorable W.H. Townsend, Judge of the Fifth Judicial Circuit:
James N. Pearman, superintendent of the South Carolina penitentiary, by way of return to the writ of habeas corpus
dated July 14, 1928, and by way of answer to the petition of Sallie Bess, respectfully shows to the Court:
I. That he admits the allegations contained in the first paragraph of said petition, but denies each and every other material allegation in said petition.
II. That said Ben Bess was duly committed to the State penitentiary from Florence County under sentence of thirty years, a copy of said commitment being hereto attached as Exhibit A and made a part of this return, the said sentence not having expired and the same is now in full force and effect.
III. That on the 4th day of May, 1928, John G. Richards, Governor of South Carolina, granted to the said Ben Bess a suspension of sentence during good behavior, and on said suspension of sentence said Ben Bess was released from the State penitentiary; and on information and belief this respondent alleges that on the 12th day of May, 1928, the said Governor of South Carolina issued what purported to be a full pardon; and on June 21st, 1928, this respondent received a verbal order from the Governor to receive and confine Ben Bess in the State penitentiary for safe-keeping, the said
verbal order being confirmed by written order dated July 16, 1928, a copy of which is hereto attached as a part of this return.
IV. That this respondent is informed and believes and on information and belief alleges that the said suspended sentence and the purported pardon were each and both obtained from the Governor by reason of misinformation and fraudulent statements presented to him, on which he relied, and that without such misinformation and fraudulent statements, the said Governor would not have signed either the suspension of sentence or the purported pardon, and that by reason of said misinformation and fraudulent statements, the said suspension of sentence and purported pardon were void from the beginning, never have taken effect, and are and have been invalid and ineffective in authorizing the release of the said Ben Bess from the State penitentiary; that since the signing of the said suspension of sentence and purported pardon, the Governor has withdrawn, canceled and annulled said papers on the grounds of fraud, a copy of said cancellation is hereto attached as a part of this return so that, the original sentence imposed by the Court on Ben Bess on June 7, 1915, in Florence County is in full force and effect and the said Ben Bess is duly and legally held in the State penitentiary pursuant to and by virtue of a valid and effective judgment and sentence of the Court of competent jurisdiction in the State of South Carolina.
Wherefore, this respondent prays that the writ be dismissed with cost.
MASTER'S REPORT
1. I, the undersigned master, have to report: Pursuant to an order of Hon. W.H. Townsend, Judge Fifth Circuit, dated July 19, 1928, referring the above-entitled cause to the master for Richland County to take and report the testimony with his findings thereon, and that the master for Richland County hold a reference with all convenient speed
and take the testimony of any and all witnesses offered by the State or the petitioner to establish or refute the charge of fraud and misrepresentation and to report his finding of facts thereon, I held a reference herein on the 2d day of August, 1928, attended by the attorneys of record, took the testimony offered, which is herewith reported, and that thereafter, on the 8th day of August, 1928, I heard arguments of counsel on the facts presented by the testimony taken, and therefrom find as hereinafter set forth.
2. That one Ben Bess, after having been tried by a legally drawn jury and found guilty, that sentence, dated June 7, 1915, was passed by the presiding Judge as follows: It is hereby ordered and it is the sentence of the Court that the said Ben Bess be imprisoned at hard labor in the State penitentiary for a period of thirty years hereafter.
3. That a petition for the pardon of Ben Bess, without date, together with affidavit thereto attached dated April 10, 1928, was filed in the office of the Governor of the State of South Carolina some time prior to the 4th day of May, 1928.
4. That by virtue of facts set forth in said petition, together with the affidavit which was offered in evidence and marked Exhibit D, the Governor did, on the 4th day of May, 1928, grant a suspension of sentence to the said Ben Bess during good behavior, and that thereafter, on the 12th day of May, 1928, issued a full pardon to the said Ben Bess, which said pardon, under the hand and seal of the Governor, attested by the Secretary of State, was offered in evidence as Exhibit A.
5. That after granting said pardon and Ben Bess was exercising his rights of freedom thereunder, the attention of the Attorney General and Solicitor was directed to the propriety of having the affiant, who, under the affidavit upon which the pardon was granted, presented before the grand jury in the County of Florence, looking to the issuance of an indictment for perjury, and that upon such facts reaching
the affiant through articles published in the papers, the affiant then denied that she had ever signed any paper with the intention of repudiating her previous testimony at the trial, and declared that she had signed a paper only forgiving him, just only forgiving him.
6. That upon such denial and repudiating of said affidavit, the Governor caused Ben Bess, through his constables, to be placed in the State penitentiary for safe-keeping, declaring that he was taken under by direction of his own free will and placed back in the penitentiary.
7. That on the 12th day of July, 1928, a petition for writ of habeas corpus was presented in the Court of Common Pleas and upon hearing the same, the Judge of the Fifth Judicial Circuit directed a hearing before him at the Court House on the 19th day of July, 1928.
8. That on the 17th day of July, 1928, the Governor issued his proclamation canceling the suspension of sentence, and also the pardon theretofore granted, stating his reason that the same were issued on misinformation and obtained by fraud, and thereupon indorsed on the record in the office of the Secretary of State the following: The within suspension of sentence is hereby withdrawn, canceled, and annulled and void for the reason that I am convinced that it was issued on misinformation and obtained by fraud, and upon the pardon indorsed the following: The within pardon is hereby withdrawn, canceled, annulled and void for the reason that I am convinced that it was issued on misinformation and obtained by fraud.
9. That return was made before Hon. W.H. Townsend by the Attorney General, and that, upon such return being made and heard, the presiding Judge referred said cause to the master as hereinabove set forth by the order dated 19th day of July, 1928.
10. I find, as matter of fact, under the terms of the order referring said cause to the master, that no fraud whatsoever
was perpetrated against the affiant in obtaining the affidavit, which, among other things, repudiated the testimony given by her at the original trial upon which conviction was had, and that said affidavit was read over to the affiant before the same was signed, and that she, together with her son, had plenty of opportunity to acquaint themselves of the true facts set forth therein.
11. I further find that affiant knew and did intend that said affidavit was to be used for the purpose of getting Ben Bess a pardon, but I further find that after developments show, on account of her limited education and intelligence, that she did not understand the full purport of the affidavit which she did sign and that her interpretation, that it was only given with the intention of forgiving the accused, was different and at great variance from the interpretation placed upon the same by the Governor, which moved him to the action in granting suspension of sentence and pardon.
12. I further find that said affidavit was obtained and was signed of her own free will and accord, without coercion on the part of any one connected with the obtaining of the same, and that her afterwards explanation and limitations of the same that was given only to forgive the accused, was made after intelligence was brought to her attention that probably she would be prosecuted for perjury, and that there was greater cause for her repudiating the same from a personal standpoint and interest than there was in the first instance for signing the same.
Having fully reported the facts, together with the testimony taken at the reference, I submit the same as full compliance under the terms of the order referring the same to the master.
ORDER IN HABEAS CORPUS PROCEEDINGS
This matter is now heard by me upon the testimony taken and reported by the master, together with the findings thereon, and exceptions thereto.
The question of fact is: Was the affidavit signed by the prosecutrix, in which it is stated that she testified falsely on the trial of the petitioner, Ben Bess, obtained by fraud and used fraudulently to procure the pardon from the Governor, on which the petition bases his claim to a discharge?
Ordinarily, as the granting of a pardon is not governed by any rules of law, and rests entirely in the discretion of the Governor, the Courts will not inquire into the Governor's motives in granting it. But fraud vitiates all things. If a pardon is fraudulently obtained from a Governor, and he so testifies and proves , the Courts will treat such a pardon as a nullity, under which no rights can be claimed. Com. v. Halloway , 44 Pa., 210 , 84 Am. Dec., 431; Rathbun v. Baumel , 196 Iowa, 1233 , 191 N.W., 297 , 30 A.L.R., 216.
From the evidence, I find that the Governor granted the pardon in question, in reliance upon the affidavit of the prosecutrix as a free and voluntary confession by her that she had committed perjury, or sworn falsely, on the trial of the petitioner. This was the basis of the application for the pardon, and the representation made to the Governor, and, if true, would have justified the pardon.
As to this affidavit, Mr. John W. Timmons testifies: He thought that the prosecutrix had not told the truth on the trial of Ben Bess in 1915. That later Sallie Bess, the wife of Ben, came to see him and to get his aid in obtaining a pardon for her husband. She told him that she had been to see the prosecutrix several times and solicited her aid in procuring a pardon. She also approached the son of the prosecutrix, saying: You are a boy to me. I call you Ervin. I wonder if we couldn't get your mother to forgive Ben of the deed he did. You know I have always been good to you and your mother, and told him Mr. Timmons wanted to see him at his office. Sallie Bess told Mr. Timmons that four or five years ago the prosecutrix wanted, or was willing, to accept $700 to turn Ben Bess loose, but that he wouldn't
raise that amount, and negotiations were dropped. Last spring Sallie came to Timmons and said she had been talking with Parker, a son of the prosecutrix. Parker says Sallie asked him to see Mr. Timmons. Timmons testifies: Parker came to see him in accordance with Sallie's suggestion, and told Timmons that the prosecutrix wanted to have Ben released from the penitentiary. Timmons said: Mr. Parker, does your mother want any compensation for it? Parker said, Yes, she wants $75. Timmons replied, Well, I will see Sallie and get her to write to Ben and see if he can raise $75. She wrote, and in a few days she came back and told Timmons that Ben said he would raise $50. In the meantime, Parker came in and Timmons told him what Ben could do, and to see his mother and ask her if she would accept the $50. Parker saw his mother, and came back and told Timmons the prosecutrix would accept the $50. In a day or two Sallie came in, and Timmons told her to write to Ben to send the $50. Ben sent it, and then the prosecutrix signed the affidavit. Timmons, as Ben's agent, paid her this $50, as compensation for signing this affidavit. The affidavit had been theretofore prepared by an attorney at the direction of Mr. Timmons, who told the attorney that the prosecutrix desired to sign a statement to the effect that her testimony had not been true at the Ben Bess trial, and this attorney knew nothing to the contrary, or that he prosecutrix was to be paid for the affidavit. Mr. Timmons, in dictating the affidavit, did not attempt to put it in the words used by Parker in telling him what his mother was willing to sign, but stated in clear and definite language what he says he gathered Parker wanted his mother to say. Mr. Timmons had no prior conversation with the affiant , but says he thought he was paying for a true statement , and denies that he had any intention of paying for a false statement.
When the affidavit had been prepared by the attorney, Mr. Timmons met the prosecutrix and Parker, her son, at
the office of the probate judge, and read over the affidavit in their presence, in a low voice, without otherwise calling their attention to its language, and had the prosecutrix to sign it, and paid her the $50. The master finds that an opportunity
was thus afforded the woman to know the contents of the affidavit when she signed it, but also finds that, while she knew and intended that the affidavit was to be used for the purpose of getting Ben Bess a pardon, yet because of her limited education and intelligence she did not understand the full purport of the affidavit. The prosecutrix is an illiterate woman, of limited capacity, and she now denies she knew it contained the statement that her testimony at the trial was untrue. In her anxiety for the money, her attention may well have been distracted.
The above-stated facts show that the payment of money by the petitioner and his agent to the prosecutrix as compensation for making the affidavit furnished an improper motive for making it , and amounted to bribery of a witness, whose testimony should have been influenced solely by the conscientious cause of duty. State v. Cole , 107 S.C. 285 , 92 S.E., 624 ; State v. Dooley , 82 Wn., 483 , 144 P., 654 .
Judgments could not command respect, if liable to be set aside or nullified by changes in testimony induced by bribery.
When the affidavit so obtained was presented to the Governor as the free and voluntary confession of perjury by the prosecutrix, without any disclosure of the agreement to pay the prosecutrix for the affidavit, and of the further circumstance that it was not dictated by her; thus, suppressing circumstances which materially affected its weight as evidence, it was believed by the Governor to be the free and voluntary confession of the prosecutrix, and operated as a fraud in obstruction of justice. I find, from the evidence, that the affidavit presented to the Governor as the free and voluntary confession of the prosecutrix was not such confession, first, because she did not fully understand the contents
or purport when she signed; and, second, because she was induced to sign by bribery; and that the use of the affidavit, so obtained, to obtain the pardon from the Governor worked a fraud in obstruction of justice, which I conclude renders the pardon a nullity, and forbids the discharge of Ben Bess under it.
It is therefore adjudged that the second and third exceptions to the master's report are sustained, and that Ben Bess be remanded to the custody of the State penitentiary.
EXCEPTIONS
1. It is respectfully submitted that his Honor, Judge Townsend, committed error of law in failing to order the release of said Ben Bess, when it appeared, from the return filed by the respondent, that he was not committed or detained in the said penitentiary by virtue of any legal process or commitment.
2. It is respectfully submitted that his Honor, Judge Townsend, committed error of law in failing to order the release of said Ben Bess at the hearing at which a return had been made to the writ of habeas corpus by the respondent, in that it appears from the face of such return that the said Ben Bess was not committed or detained by virtue of any process that was legally competent to cause the commitment and detention in the said penitentiary of said Ben Bess.
3. It is respectfully submitted that his Honor, Judge Townsend, committed error of law in failing and refusing to recognize that the judgment and sentence upon which said Bess had been originally committed to the said penitentiary was no longer in force and effect, in that the same was wiped out and forever ended by virtue of a pardon issued by the Governor of South Carolina and duly delivered to said Ben Bess.
4. It is respectfully submitted that his Honor, Judge Townsend, committed error of law in failing and refusing
to order the discharge of said Ben Bess from the said penitentiary within two days after the hearing held upon the writ of habeas corpus issued in his behalf, in that the law of South Carolina made it mandatory upon his Honor to order such discharge, no legal cause having been shown for the imprisonment.
5. It is respectfully submitted that his Honor, Judge Townsend, committed error of law in holding that the return of the respondent presented any issue that could be tried by a court of equity, in that (a) the proceeding was on the law side of the court; (b) the return raised no issue triable by any Court and prayed for no relief at the hands of a Court of equity.
6. It is respectfully submitted that his Honor, Judge Townsend, was without jurisdiction to try the issue of fraud alleged to be raised by the return of the respondent in this proceeding, because:
(a) This was a special proceeding , and not an action.
(b) Such an issue could only be raised by an action , instituted directly for such purpose.
(c) Such an action could only be instituted by service of a summons , as provided in the Civil Code of Procedure of South Carolina.
7. It is respectfully submitted that his Honor, Judge Townsend, committed error of law in ordering a reference to be held in this case before the master in equity for Richland County, in that the proceedings did not raise any issues that were legally referable to a master in equity.
8. It is respectfully submitted that his Honor, Judge Townsend, committed error of law in holding that the return of the respondent raised the issue of fraud, in that the said return shows upon its face that no such issue was properly raised therein.
9. It is respectfully submitted that his Honor, Judge Townsend, committed error of law in holding that the pardon in this case was fraudulently obtained for the benefit
of said Ben Bess, in that there is no proof whatsoever in the record to sustain such a holding.
10. It is respectfully submitted that his Honor, Judge Townsend, committed error of law in holding that the Governor granted the pardon in question upon the ground that the affidavit subscribed by the original prosecutrix of Ben Bess was a free and voluntary confession by her that she had committed perjury or sworn falsely in the trial of said Ben Bess, in that there is no testimony in the record that reasonably tends to support such a conclusion.
11. It is respectfully submitted that his Honor, Judge Townsend, committed error of law in his conclusions, and judgment thereon, upon incompetent testimony, to wit: You are a boy to me. I call you Ervin. I wonder if we couldn't get your mother to forgive Ben of the deed he did. You know I have always been good to you and your mother — in that no such testimony is properly in the record, such alleged testimony having been duly objected to by counsel for said Ben Bess upon the ground that it was hearsay and incompetent, such objection having been sustained by the master.
12. It is respectfully submitted that his Honor, Judge Townsend, committed error of law in holding that the payment to the original prosecutrix of $50 was made in the nature of a bribe, in that the record distinctly shows that the sole purpose of such payment was to have the woman make a true statement of the facts of the original case.
13. It is respectfully submitted that his Honor, Judge Townsend, committed error of law in predicating his conclusions and judgment in this case upon the ground that the payment of money to the prosecutrix by said Bess or his agents was made with an improper motive, or for the purpose of bribing her to make a false affidavit, in that there is no testimony in the record that reasonably tends to support such a conclusion.
14. It is respectfully submitted that his Honor, Judge Townsend, committed error of law in holding that there was any effort whatsoever upon the part of said Bess or his agents to withhold from the Governor the fact that the sum of $50 had been paid to the prosecutrix at the time she signed the affidavit in question, in that there is no testimony in the record that reasonably tends to support such a conclusion.
15. It is respectfully submitted that his Honor, Judge Townsend, committed error of law in holding that Governor Richards was not fully informed of the fact that a payment of $50 had been made to the prosecutrix on behalf of Ben Bess at the time she signed the affidavit in question, in that there is no evidence in the record upon which such a finding can be predicated.
16. It is respectfully submitted that his Honor, Judge Townsend, committed error of law in basing his judgment in this case upon testimony of the prosecutrix which tended to explain, modify, and set aside that which she had previously sworn to under circumstances that gave her ample opportunity to fully understand and comprehend the statement that she was making under oath, in that his Honor thereby gave full credence to one sworn statement of this witness, and absolutely disregarded and wiped out another sworn statement of the same witness, that was clearly of greater weight as evidence than the one accepted as true by the Court.
17. It is respectfully submitted that his Honor, Judge Townsend, committed error of law in holding and adjudging that the statement set out in the affidavit signed by the prosecutrix and submitted to the Governor was not true, in that the master had found (and his Honor concurred) that such statement was entitled to greater weight as evidence than was the attempted repudiation of it by the affiant, since the repudiation was attempted only after notice had been
brought home to the affiant that she would probably be prosecuted for perjury.
18. It is respectfully submitted that his Honor, Judge Townsend, committed error of law in finding and ruling that the affidavit presented to Governor Richards in behalf of said Bess was not the free and voluntary confession of the prosecutrix, in that the only reasonable conclusion to be reached from the testimony in the record is that the woman voluntarily approached — either by herself or her son, who acted as her agent — the agent of said Bess with the proposition to do that which would work the release of said Bess from the penitentiary, and that she thereafter went of her own free will and accord to the office of the probate Judge of Florence County and signed the affidavit in question, after it had been read in the presence of her son and herself, both of whom had ample opportunity to fully inform themselves as to its contents.
19. It is respectfully submitted that his Honor, Judge Townsend, committed error of law in finding and ruling that any fraud was perpetrated upon the signer of the affidavit in question, in that the record clearly shows that no fraud whatsoever was perpetrated upon her, and his Honor should have so found and ruled.
20. It is respectfully submitted that his Honor, Judge Townsend, committed error of law in finding and ruling that any fraud was perpetrated upon Governor Richards in connection with the procurement from him of the pardon in question, in that the record clearly shows that no fraud whatsoever was attempted or perpetrated by Ben Bess or his agents in connection with the procurement of the said pardon, and his Honor should have so held and ruled.
21. It is respectfully submitted that his Honor, Judge Townsend, committed error of law in sustaining either or any of the exceptions to the master's report in this case, the record clearly showing that the findings of the master were
fully sustained by the evidence presented at the hearing before him and that his findings were correct in every respect, while the findings of his Honor are contrary to such evidence.
22. It is respectfully submitted that his Honor, Judge Townsend, committed error of law in remanding the said Ben Bess to the penitentiary, in that it had been fully and clearly shown that he had been legally discharged therefrom by virtue of an unconditional pardon issued by the Governor of South Carolina, which said pardon was in full force and effect at all times from the date of its issuance and delivery to said Ben Bess, and that by virtue of said pardon said Bess had been forever relieved of the sentence imposed upon him by the Judge who presided at his trial.
23. It is respectfully submitted that his Honor, Judge Townsend, committed error of law in finding and ruling that the pardon in question was and is a nullity, in that he should have found and ruled that it was and is full, complete, and effective, and that as a matter of law it operated as a bar and estoppel from any further charges against said Bess arising out of, or in any way connected with, the original crime for which he had been committed to the said penitentiary, and that it restored him to his full rights and liberties as a citizen of the State of South Carolina.
24. It is respectfully submitted that his Honor, Judge Townsend, committed error of law in finding and ruling that the pardon in question was and is a nullity, in that the evidence presented on behalf of said Bess fully established that it was and is a grant or deed duly and regularly issued in and for the State of South Carolina by the official having the legal power and authority to issue such an instrument, and the said grant or deed was and is still outstanding in full force and effect, the same never having been canceled as a matter of law.
25. It is respectfully submitted that his Honor, Judge Townsend, committed error of law in failing and refusing
to order the discharge of said Ben Bess, in that on the whole record it is clearly shown that he was and is entitled to his liberty, because:
(a) He was relieved of any further service of the original sentence imposed upon him by the late Judge Memminger by virtue of the pardon regularly issued by and in behalf of the State of South Carolina and duly delivered to him and under which said pardon he had been duly, regularly, and lawfully released from the State penitentiary.
(b) He was induced to return to the said institution by representations which led him to believe that he was in danger from mob violence, and that he could leave the said institution at any time that he desired so to do, and having been admitted to the said institution under such conditions, he cannot be held therein as a prisoner, as this would result in the perpetration of a fraud on said Ben Bess, and would be contrary to equity, good conscience, and sound public policy.
(c) Such a course would place the State of South Carolina in the position of adopting a manifest subterfuge and being guilty of sharp practice in an alleged effort to vindicate the law, which would violate the maxim that those who appeal to a Court of equity must come into Court with clean hands. Source: CourtListener
