(77 Hun, 92.)

#### PEOPLE v. BURNS.

(Supreme Court, General Term, Fifth Department.

April 12, 1894.)

1. Conditional Pardon—Violation—Remandinq Convict.

Where a convict is charged with violating a conditional pardon, the question of fact is properly tried by a jury on return of an order to show cause why he should not be remanded to prison, for such violation, under his original sentence.

2. Same—Validity of Condition.

Under Const, art. 4, § 5, providing that the governor may grant pardons on such conditions as he may think proper, a condition that the person pardoned shall totally abstain from the use of intoxicating liquors for five years is valid.

Appeal from court of oyer and terminer, Cayuga county.

James Burns was convicted of the crime of robbery in the first degree, and sentenced to imprisonment in the Auburn state prison for a term of 13 years. He was released from custody on a conditional pardon, but was afterwards remanded to the custody of the warden of the prison, and he thereupon sued out a writ of habeas corpus. The court discharged Mm from the custody of the warden, but made an order requiring him to show cause why he should not be remanded on his original sentence. On the hearing,.defendant was recommitted on his original sentence, and from such order he appeals. Affirmed.

*301Argued before DWIGHT, P. J., and LEWIS, HAIGHT, and BRADLEY, JJ.

J. H. Keef, for appellant.

G. W. Nellis, Dist. Atty., for the People.

DWIGHT, P. J.

The order appealed from remanded the defendant to the custody of the warden of the state prison at Auburn, on the ground that he had violated the condition of the pardon by virtue of which he had previously been released from such custody. On the 18th day of May, 1889, the defendant was convicted in the Herkimer sessions of the crime of robbery in the first degree, and sentenced to imprisonment at hard labor in the Auburn state prison for the term of 13 years. On the 10th of January, 1893, the governor granted a commutation of the punishment thus imposed to a like imprisonment for the term of 3 years, 7 months, and 22 days from May 20, 1889, to terminate January 11, 1893, on which day the defendant was accordingly released from his imprisonment. The commutation thus granted was upon the express condition, among others, “that the said Burns shall totally abstain from the use of intoxicating liquors for five years from the date hereof, and if he violate such condition he shall be compelled to serve in the state prison at Auburn the portion of said term now remaining unserved, without commutation for good behavior.” On the 6th day of June, 1893, the defendant was arrested in Rochester, on a charge of robbery, in a saloon, where, according to his own account of himself to the police magistrate, and other evidence, he had been drinking for some time with a party whom he had invited there for that purpose, one of whom complained of being robbed of his watch by the defendant. Upon these facts being made known to the district attorney at Rochester, he reported the case to the warden of the state prison at Auburn, and the latter dispatched an officer to Rochester, who, under his instructions, brought the defendant back to Auburn, and delivered him to the custody of the warden, who received and consigned him to imprisonment under his original sentence, as having forfeited his commutation by violating the condition upon which it was granted. On the 30th day of October the defendant sued out a writ of habeas corpus, which was allowed by Justice Rumsey, and made returnable before him the next day, at an adjourned term of the court of oyer and terminer for Cayuga county. The defendant was produced, accordingly, by the warden of the state prison, who made return of, substantially, the facts above stated. The defendant traversed the return only in respect to the alleged violation of the condition of his commutation, but objected to it for insufficiency, on many grounds. The court, in effect, sustained the objection that it was not competent for the warden to seize and recommit the defendant without a hearing on the question of Ms violation of the condition of his commutation, and accordingly discharged the defendant from the present custody of the warden, but made an order requiring him to show cause, forthwith, before the same court, why he should not be remanded to the state prison *302under Ms original sentence, for violation of Ms conditional pardon, and that in the mean time he be delivered to the sheriff of Cayuga county, and be held by him until so remanded to prison, or discharged according to law. The inquiry under the order to show cause was postponed until the 2d day of November. On that day the defendant appeared in person and by counsel; a jury was duly impaneled; evidence was duly taken on the part of the people and of the defendant; the question of fact was tried, and, after argument of counsel, was specifically submitted to the jury by the court. The jury returned a verdict to the effect that the defendant had violated the above-mentioned condition of his conditional pardon or commutation, and the court thereupon made an order recommitting the defendant to the custody of the warden of the state prison under the ■sentence originally imposed upon him.

We find no error in the mode of procedure adopted in tMs case, nor in the final order here appealed from.

The constitution of the state contains the following provision:

“The governor shall have the power to grant reprieves, commutations and pardons after conviction, for all offenses except treason and cases of impeachment, upon such conditions and with such restrictions and limitations .as he may think proper." Article 4, § 5.

The discretion here given to the executive is very wide in respect to the conditions which may be attached to pardons and commutations of sentence,—no distinction being made between the two forms of executive clemency,—and we cannot doubt that the condition imposed in this case was within that discretion. Such being the case, the violation of that condition deprived the commutation of all force and effect, and restored to the original sentence the ■same force and effect as if the commutation had not been granted. The statutes of the state provide, specifically, no mode of procedure for enforcing the liabilty to recommitment incurred by a violation of the condition of a pardon or commutation; but the mode adopted in this case had the authority of precedent (People v. James, 2 Caines, 57; People v. Potter, 1 Parker, Crim. R. 47), and it seems to have been one of which the defendant coMd not complain. He was before the court on a writ of habeas corpus granted on his own application, and he thereby submitted to the court the whole question of his right to .a discharge, or his liability to a recommitment. The fact of his original sentence and commitment, and the condition attached to the commutation of that sentence, were duly proved and not denied. No ■question of identity was raised. The only question of fact was of the violation of the condition mentioned. In determining that ■question the court, though possibly not required to do so, might, at least, with great propriety, take the verdict of a jury drawn, as was done, from the panel of jurors summoned and in attendance at the term; and his commitment pending such trial to the custody of the sheriff of the county was strictly in accordance with the statute which prescribes the proceedings on habeas corpus. Code Civ. Proc. § 2037.

The question whether it was competent for the governor to prescribe, by the defendant’s commutation, that his imprisonment un*303der a recommitment for a violation of the condition in question should be without commutation for good behavior, was not in any manner prejudged in this proceeding, but remains to be determined whenever it shall appear that he is otherwise entitled to such commutation. The order appealed from should be affirmed.

So ordered, without costs of this appeal to either party. All concur.