27 Ark.] OF THE STATE OF ARKANSAS 469 '.LERM, 1872.] State v. Carson. STATE v. CARSON. , PARDON-Will not restore to office—C. while holding the office of prob7ate and county judge, was convicted in the Circuit Court of a felony; he appealed; during the pendency of the appeal he was p ardoned by the Governor. On quo warramto, he pleaded his pardon; Held, That a judicial officer forfeits his office by conviction of a felony and that no pardon can restore him. QUO WARRANTO. Montgomery, Attorney General, for the State. Persons convicted of malfeasance in office, or crimes punishable by law with imprisonment in the penitentiary, cannot hold offide in this State. Constitution, 5th clause, Sec. 3 of Art. 8; Sec. 4, page 383 Gould's Digest. Every attempt to exercise the functions of an office, after conviction, is an usurpation. The Commonwealth, vs. Fugate, 2 Leigh (Va. R.). 724, and cases there cited. A pardon does not restore offices forfeited, or property, or -
470 CASES IN THE SUPREME COURT [27 Ark. State v, Carson, [DECpfBER interest vested, in others, in consequence of the conviction and judgment. Ex parte . Garland, 4 Wallace, 333, and cases there cited-. U. M. Rose, for Defendant. MCCLURE, C. J.—Carson was probate and county judge of Craighead county, and, prior to the filing of the information, was convicted of a' felony, and sentenced to confinement in the penitentiary. From the judgment of the Circuit Couri he appealed to this court. During the pendency of the cause in this court, Carson obtained a pardon from the Governor, and • pleaded the same in bar to the suit then pending. The Attorney General confessed the pardon and its tr . uth, and Carson was discharged. • After these proceedings were had, Carson returned to his home and continued to exercise the duties and functions of the . office of probate and county judge, whereupon' the Attorney General filed . quo warranto. To the writ of quo warranto, the defendant pleaded his commission and qfialification. To this plea the Attorney General responded, that since the issuing of the commission and qualification, as alleged, the defendant had been convicted of a felony; which judgnient has not been reversed. To this reply the defendant • filed two pleas. First. "That he was not indicted and conVicted in manner and form as therein stated, and of this he puts himself on the country, etc. ' Second. That after the time of said , supposed conviction, to wit : on the 12th day of December, 1870, the Governor of Arkansas issued and granted unto the defendant, under the seal and in due form a law, a full pardon for the said pfrense„ etc. The Attorney • General moved to strike the first plea from the files for the reason that it raised an issue of fact, and was pot sworn to. This Motion *as overruled. To the second plea, the Attorney General demurred on the
27 Ark.] OF THE' STATE OF" ARKANSAS. 471 TERM, 1872.1 ,State v. Carson,. ground that the facts stated in the plea do not contain facts sufficient to constitute a defense. We will dispose of the question of law presented by the demurrer, before discussing the question of fact. Section 3, Article VIII, of the Constitution of this State, among other things, declares that "those .who have been convicted of treason, embezzlement of public funds, malfeasance in office, crimes punishable by law with imprisonment in the penitentiary, or bribery,, shall not be permitted to register, or vote or hold office." Section 4, of part X, of Gould's Digest (383) is as follows:. "Every person convicted of bribery or felony, shall be excluded from every office of trust or profit, and , from the right of suffrage in , this State." Section 9, of Article VI, of the Constitution, gives the Governor power to grant reprieves, pardons and commutations after convi cti on. The question now arises, does the. Governor's pardon .restore the office of probate and county judge to Carson, or does it only restore him to certain civil rights? In ex parte, Garland "(4 Wall, 381) the Supreme Court of the United States, in speaking of the Y effect of a pardon said: "It does not restore to offices forfeited, or property or . interests vested in others in consequence of the conviction and. judgment." 4 Black-stone's Commentaries, 402; 7 Bacon's Abridgement Title, Pardon. In this case there was a trial, verdict and sentence. The appeal did not set aside the judgment of the Circuit Court, it merely suspended judgment, or rather the execution of the judgment. Section 327, CriminakCode, page 329. One of two things must be true in this case, either that Carson was tried, convicted and sentenced to the ' penitentiary, or that the Governor had no right to pardon him. The power of the Governor to pardon, by the terms of the Constitution, is limited to cases after conviction. If an examination of the record, in the Circuit Court of Craighead county, in the case of the State against this defendant, should. dis-
472 CASES IN THE SUPREME 'COURT [27 Ark. State v. Carson, [DECIMBER olose the fact that no conviction was had, then the pardon which he pleaded when the case was here on appeal, and the one which he now pleads is a nullity, having been granted before conviction. State vs. McIntire, 1 Jones Law (N. C.) 1. On the other hand, if it appears that a conviction to.ok place before pardon, then it clearly follows, that the defendant cannot assume to exercise the functions and duties of the office of county and Probate judge. In the case of the Com: inonwealth vs. Fugate, (2 Leigh Va., 724) a justice of the peace was convicted of a felony, and afterwards ' pardoned by the Governor. On his return home, he resumed the exercise of -the office of , justice of the peace. A rule was made upon him to show cause why an information, in_ the nature of quo war-• ranto, should not be filed against him, etc. To the rule, he pleaded his commission, qualification and pardon, as is done in this c • ase. In disPosing of the case Brockenbrough, J., said : "The court is decidedly of opinion that such judicial officer forfeits his office by . conviction of a felony, and that no pardon can restore him." This case is very analogous to the one at bar,. the only difference being that nci appeal was taken. Carson was either oonvicted or he was not convicted. Instead of combating his oase upon its merits in this _court, he relied upon his pardon, and was allowed to depart from it—not upon a judgment of acquittal, but by the terms of a pardon, by which his guilt and conviction had to be acknowledged before it could be obtained. The pleading the pardon was a virtual abandonment of the appeal, and Carson now stands in no better light before the court than though he had not appealed. The pleas in this case are contradictory; the first denies oonviction, and the second pleads he was pardoned ; but inasmuch as the demurrer to the second plea is well taken, --we will pass to the first without comment. With the papers submitted in this case, is a certified transcript record of the case of the State of Arkansas vs. James Carson, which clearly shows Carson to have been_ convicted
27 Ark.] OF THE STATE OF ARKANSAS. 473 TERM, 1872.1 o f ' a felony and sentenced to the penitentiary. The judgment and sentence of the Craighead Citcuit Court has not been set aside. The record showing a conViction, it is incumbent on the defendant to rid himself of the record or accept the consequences which follow its introduction as evidence. The defendant having failed to show a continuing right to exercise the office of probate and county judge, a judgment of ouster will be entered.
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