New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1891-12-28
WEIGHTS UNLAWFUL PARDON
GOV. HILLS ACT DISCUSSED BY MATTHEW
HALE.

Albany Dec 27.-Matthew Hale the leading Ike
publican counsel here in the management OF 'ne ais
puted senate district cases, has made careful eAii'
nation OF the statutes Of the state bearing upon TIE
mower of Governor Hill TO pardon. Us lie did, supervisor
WEIGH of Onondaga COunty-the man who ra1 away
With the election returns of that county, was adudgen
bv udee Kennedy guilty of contempt of court. and was
eptenced TO thirty days imprisonment only to be par
dooed by Governor Hill within SIX hours. speaking
npon tie subject of the pardon to-day. Mr.. Hale said
The question raised by the attempted pardon OF
w.cb by Governor Hill is new one and depends
,nor the construction of Section of Article " Of
re constitution This section provides that the Gov
amor shall have the power to grant reprieves. par
dons and communications after conviction Tor all
offences except treason and cases of impeachment,
u,on snch conditions and with such restrictions and
limitations as he may think proper subject u such
regulations as may be provided by law relative 10 Sho
manner Of applying for pardOns. WEIGH was COM
mtted TO prison. as | understand under section 22so
Of the Code of Civil Procedure. which provides IN rea
ton IA contemptS after specifying particular case
that in every other where special pi0Vlsloh Is
NOT otherwise made by law the offender may be I'M
n,isonsd for reasonable time not exceeding SIX
months and until the fine, Il any, Is paid Inc Code
Of Civil Procedure also provides that person pun
Ished As prescribed in this title may NOTWITHSTANDING
;, Indicted for the same misconduct. if it is an In
dictabe offence but the court before which he Is
convicted must before passing sentence. take INTO
consideration the previous punishment
The first question is whether the word conviction
a. used I'm the Constitution includes the punishment OF
an offender by the court for dsobedience to its order
II NAV le observed that Conempt> are also MADE mis-
demeanor, Ly the Penal Code. BY Section l43 per
son who wlfllly disoteye the lawful process or other
mandate of a court is made guilty of msdemeanor
nv subsequent section of the Penal Code 1t Is declared
that a criminal act j. not less punishable as CRIME
because IL is also declared to be punishable a. con
,ar,pt of court (Section $50 And IL is also pro
ided that where it appears the time of passing sen
elce upon person convicted that he has already paid
a fine or suffered an Imprisonment for the act Tor
which he stands convicted under an order adludghS
4 contempt. the court passing sentence may mlusa'e
the punishment tn be imposed in its discretion trhai
Code section 6s1l A contempt, therefore, can be
punished in two ways: First. the court may infict
fire or Imprisonment by order adjudging his act to be
contempt Code of Civil Procedure, Sea- 2.2s3) Tho
offender NAV also b indicted and upon conviction
that is after tlia by the court and jury, sentenced
BY The court for crime.
OF course there can De 10 doubt as TO the power
Of the Governor TO pardon contempt for when, rs
crime the offender has been tried and convicted Inc
question is whether he has such power where the pun
ismep is inflicted under the provisions of the code
OF Civil Procedure by order of the court an order
which, u has been seen, does not prevent a SuoSe
duenl trial by jury aud conviction the only provision
being that the punishment BY order may be considered
in mitigation Of the punishment to be Imposed amer
conviction The word conviction defined in different
WAYS The usual definition is finding person guilty
by verdict Of a jury Nouver). But it is sometimes
used - include the summary conviction which takes
place 1efore an authorized magistrate without the
Intervention Of a jury. (See Bouvier's Dictionary
title ConvictiOn.o
Under a provision in the constitution Of MasSa-
chusetts somewhat similar TO ours, 1t has been hen
that the Governor might grant pardon of an offence
..tad hafn
while exceptions allowed by the judge who presided
AT TIE trial were pending in the supreme Court Com
noaweath vs. Lockwood, 100, Mass. 323D In tls
case, Judge Gray. Of the United states supreme
Court discusses fully the meaning Of the word convc
ton. and he says: The ordinary legal meaning Oh
convection when used to designate particular stage Of
IL criminal prosecution trisble by jury, is the con
fe,on Of the accused in open court, Or the verdict
Ietur cd against him by the jury which ascertaS ana
y dishes the fact Of his guilt a. 3"3J lie SAYS
At the time Of the adoption Of the constitution the
word conviction was ordinarily used TO express the
verdict only CP. 800 80,
But il was held BY the Court OF Appeals Of TINS
state that under the provisions Of the Revised Statutes
NOW repealed disquaifyifg witness any person
who shall upon conviction he adJudged OF perjury u
person j not rendered incompetent until by judgment
sentence has been pronounced upon nm. III o'her
words, il was held that there must be not only Il
verdict but Judgment upon that verdict before there
Wa a conviction Ulaufus Y. The People, 80 y. y.
lO7) Judge Folger says in that case In ordinary
nbrase the meaning of the word conviction il the finding
Iv the jury of verdict that the accused IS guilty.
But I'm legal paIlanCe, il often denotes the maj jung
ment Of the court p. 1889 lie also says; we
r. brought 10 the conclusion that, although the woil
conviction is not always used In the books 10 express
the same idea or judicial act vet that its Use In the
enactment under consideration not enough to overcome
the authorities which we have cited P 112)
"It was recently held by tue superior Court OF we
cty of New York, that perjury committed by Seues
to an undertaking on their examination was con
tempt Of court and might be punished a. such Nv
order and I'm that the court ordered the 'uretleS
imprisoned for six months for contempt The
court SANS To punish for contempt was part OF the
common law Of England when the constitution OF
1--- was adopted That constitution declared that
the common law ~ England should De and continue
the law Of this State. The power TO punish fOi Il
contempt is a branch Of the common law which has
been adopted and sanctioned by our state c0nsutu-
ton. Therefore. this is not ono Of the cases in
which trial by jury has been heretofore used
N,gan VS.. Lynch. 40 sup. Ct. Rep. 4j4, 45p..
A previous conviction i, always good defence for
indictment for crime, but take The case Oh frah
against Lynch, or any case where there has been q
punishment by order Of the cOnrt for Il contempt.
Such order or adjudication although followed by
punishment Is not a bar u d criminal prosecu'oh'
the only effect being, has heretofore been shO"h'
that II may considered In mitigation OF punishment
when a person is convicted and Sentenced. The Ola
,;se of Yates Lansing 80 Johns. 300 Is an III
portant in considering this question. In that cse
The Chancellor Of this state had committed one OF te
officers of the Court OF Chancery for malpractice ana
contempt, and Judge Of the supreme Court. In vsca
ton, Oh a habeas corpus discharged the prisoner
The Chancellor afteIward recOmmitted him for The
same cause. 1t was held that the Chancellor was not
liable at the suit Of the officer for the penal
~ given by the fifth section Of the Iiabcas
Act ak bod 81 win rpt he
ment had been made for contempt Judge OF the
Supreme Court could not haDeaS corpus discharge
the person 80 committed from hi, imprisonment 1t
Is said in that case "A contempt is al offence against
the court organ Of public justice; and the court
can rightiully punish IL summary conviction