
    The State, v. Jambs Chancellor, and Wiley Chancellor.
    Where, after sentence, the defendant receives a pardon from the Governor, on the condition that he should leave the State and not return, if he afterwards return, he is remitted to his original sentence, and when brought before the Court to have it reiterated and another day assigned for its infliction, he may show cause why it should not be passed, but is no more entitled to a trial by indictment, or on a written rule to show cause, than if he had received no pardon from the Governor, but the sheriff had omitted for some reason to inflict the sentence on the day first assigned.
    Tried before Mr. Justice Frost, at Darlington, Spring Term, 1847.
    The defendants had been convicted of larceny, and were sentenced to receive each twenty lashes. They were pardoned, on condition that they should leave the State and not return. In violation of the condition, they returned to Darlington District, their former place of residence. At the last term, a bench warrant was issued for their arrest, to compel them to enter into recognizance, to appear at the present term, and submit to the sentence which had been imposed on them: The magistrate took a recognizance for their appearance at this term, to answer to an indictment for larceny. The case, being on the docket for sentence, was called, when the defendants appeared in Court, and, by their counsel, were fully heard in opposition to the sentence. The presiding Judge, in deciding the questions made, having referred to the caso of the State v. Smith, 1 Bail., the objection was interposed that the defendants had not been served with a rule to show cause. It seemed that in that stage of the case, after the defendants had been notified by the bench warrant to appear for sentence, and were present in Court, and their counsel had been fully heard, the claim for the service of a rule was merely dilatory and evasive. The defendants were required to show cause why the sentence should not be passed; and their counsel having replied that they had no other cause than had already been presented, the former sentence was ordered to be inflicted.
    Among the objections taken by the counsel, it was insisted that the defendants were entitled to a trial by indictment, which was not sustained.
    
      An appeal was taken on the grounds annexed.
    The defendants give notice, that they will move the Court of Appeals to set aside the sentence of Judge Frost, by which the defendants were ordered to receive twenty lashes, on the first Monday in July next, on the following grounds:
    1. That before sentence could be passed on the defendants,
    for violating the condition of the pardon of the Governor, they were entitled to a trial by indictment, or on a rule to show cause, and neither of these proceedings were instituted against the defendants in this case. ,
    2. That it did not appear that the defendants had any notice whatever, that an application would be made to pass sentence on them, for violating the condition of the Governor’s pardon, until the moment they were called up to receive the sentence.
    Daroan, for the motion.
    This is a criminal proceeding, and the prisoners are entitled to all the forms which a humane principle of our law has thrown around them for their protection. The violation of the condition of a pardon may involve constitutional questions and others of great moment. The power of annexing such a condition has been gravely questioned; whether the condition was not void and the pardon good? These parties are entitled to a rule to show cause. An illegal or impossible condition would be void; the former in law, the latter in fact. Suppose the party to bo physically unable; this would be a question for a jury. Parol notice was not sufficient, but a iormal rule of the Court was necessary. It would not do to say, the party had opportunity at the moment he may require time for witnesses, &c. This was a new trial, involving new questions of law' and fact; the pardon should have been produced by the State, its violation shown, &c. The party may have been brought back by force, &c. The State, v. Smith, I Bail., 283; the defendant in this case had returned voluntarily and fled from arrest afterwards; he was arrested in North Carolina and brought back. In the State, v. Addington, 2 Bailey, 516, the defendant received a part of the s cntence, and could not receive the other for want of time. It was a question both of Jaw and fact. He also plead the recent act of the State, his trial twice for the same offence, &c. The State, v. Fuller, 1 M’Cord, 178, does not show the mode of proceeding. In the People of New York, v. James, 2 Kane’s Cases, 57, a rule was taken to show cause, although the party was in the custody of the Court. The King v. Madden, 1 Lietche’s Cases, 263, is the leading case on the subject. In this case the original order did not provide for a rule, nor was the bench warrant entire in itself; it does not even name the case, or for what the party was called up to receive sentence. The Court cannot presume this knowledge in the parly. The recognizance is also indefinite, and calculated to mislead the prisoner; it was to answer to an indictment. None of the papers of the case can be called notice. If it was even a scire facias to renew a judgment, a form, such as this, would be insufficient. The judgment is described, the parties named, and notice given to show cause. This is a parallel case; both are to revive. In the gravest matters of life, involving what is to many dearer than life, is the party to be less formally dealt with? A recognizance should show all that the party is to expect, specify the charge, &c.; 2 Greenleaf Ev., 62; Goodwin v. The Governor of Alabama, 1 Stewart & Porter, 465; Simpson v. The Commonwealth, 1 Dana’s Rep., 523, shows how necessary is the connection between the warrant and the recognizance.
    M’Iver, Solicitor, contra.
    
    The prisoner did appear in Court, with counsel, to show cause; why then send this case back for a mere informality? The motion for a rule to show cause, was an after thought of the counsel, and by going on to show it, he waived his right to the rule, if he had any. The rule is only notice, and the party has had notice. His conduct showed that he had notice. The warrant had the effect of a rule to show cause. There is a reference to the order, in the warrant. Motion to sentence, is always made by the Solicitor, and the parly can show cause and will be heard. The State v. Smith settles all the questions started by the counsel for the prisoner.
    Dakgan, in reply.
    Contended, that it did not appear on the face of the proceedings, for what the prisoners were to receive sentence. He meant legal and proper notice, that nothing was to be presumed against them, and that he did not waive an offer of time to show cause.
   Richardson J.

delivered the opinion of the Court.

The principle upon which this case turns, is that decided in Smith’s, Addington’s, and Fuller’s cases, to wit: that upon the defendant returning to this State, ho was remitted to his original sentence. The present defendants, after going abroad, repented of the alternative they had chosen, and accordingly returned to South Carolina, and were brought before the Courts in order to have another day assigned for the infliction of their sentence. All sentences must he passed in open Court, and in the presence of the party. Exposure to the public eye is a material part of every sentence, and leads to much judicial consideration. In every case, the defendant may show cause why the sentence ought not to be passed: for instance, he may show that he is not the same man, that he has been pardoned, or any other cause, if sufficient to arrest or suspend the sentence: and the Judge passes the sentence, or not; and when he doubts upon the facts, he may call to his aid the powers of the jury. All this may happen in any case. Rut, all immediate steps preliminary to passing the sentence, are, according to the case made by the defendant; and. are necessarily, within the discretionary powers of the Judge—subject always, of course, to an appeal to this Court.

Suppose, for illustration, that, these very defendants had received no pardon from the Governor; but the sheriff had omitted, for any reason, to inflict their sentences on the day assigned; it would in such case, he easy to perceive, when the defendants were brought before the Court a second time, that they stood in statu quo; i. e., remitted to their former sentence, with their rights neither enhanced nor attenuated. And the Judge would have but to allow the defendants their original right of showing cause; and in default of sufficient cause, to reiterate the former sentence, but assigning another day for the infliction, because the day first assigned had passed away; and no matter for what cause, the law must not bo eluded.

How can it make any rational difference, that the defendants had received a pardon, which they accepted, or rather pretended to accept, and then would not adhere to its condition, which is the sine qua non of the pardon. But in the meantime, and in this way, the day assigned for the infliction of the sentence had passed by. This can make no difference, unless a little complexity of circumstances is to put the Court out of its established order of proceeding, or unless this may be done by the finesse or inconsistent conduct of defendants, or by accident.

If the defendants had been involuntarily brought back to this State, or were not really the men before convicted, or could raise any legal bar ou t of the pardon, or show any other good cause—did they not stand as when originally brought up for sentence? They certainly stood, in the second instance, as in the first, i. e., precisely the same parity of right, o f law, and of reason; i. e.. they were still simply convicts, brought before the Court 1:o be again sentenced, because they had so far eluded it.

Referring now to the express grounds of the present appeal, for what were they to be again indicted? Their going abroad and returning to punishment, belonged to their own tree elec. iion. But suppose an indictment lay for violating the pardon; could the defendants force that proceeding on the State? Suppose a capital case, and the sentence death, to what purpose try the misdemeanor at all? Again; why distinguish these particular defendants by the form of a written rule to show cause? Is it beca uso they had delayed their sentence, and troubled the sheriff u second time? And lastly; why should they receive any more formal notice, than when their sentence was originally passed? All the proceeding, by rules, bench warrants, and recognizances, were to bring the defendants before the Court; but when there, they stood as if they had never been out of the custody of the sheriff. Were they to be treated as men who knew not their former trial, or their sentence, or how they had managed to postpone its infliction? Surely not. In a word, they had come back to stand before the Court as convicts, and no more; unless trifling with the executive mercy, and the law, can give them additional claims. Against such views of the case, the argument has been, not but that the defendants were called upon with the usual solemnity to show cause, &c., but that this was done only in the common way, viva voce. Whereas it was urged, that there must be a written formula, as was practised in Smith’s case, 1 Bail., 283, and in Addington’s case, 2 Bail., 512, though not in Fuller’s case, 1 M’C., 178. No one can find fault with the proceeding by a written rule; but this was not a point made in either of those cases. The judicial decision in all those cases, was, that the defendants, by returning to the State, or not going out in the prescribed time—which was Fuller’s case —were remitted to the original sentence, which is the principle of all my reasoning in the present case. Yet, certainly, it is well to follow approved and established practice; it prevents surprise; but wc have nothing of the kind, and are left to decide the case upon its analogy, or rather identity, with ordinary cases. And the Court can perceive no error in law, nor danger in the Judge following the general usages of our Courts in passing sentences.

The motion is therefore dismissed.

Evans J., FROst J., and Withers J., concurred.

Wardlaw J. dissented.  