
    State of Ohio v. Martin alias Anderson.
    
      'Habitual criminal act — Section 7888-11, Revised Statutes — Effect of j ' unconditional pardon.
    
    If imprisonment for a felony is terminated by an unconditional pardon it is not to be regarded as one of the two former imprisonments for felony required by section 7388-11, Revised . Statutes, to place the accused in the category of habitual criminals.
    (Decided November 29, 1898.)
    ^ Exception to the Court of Common Pleas of Franklin county.'
    At the April term, 1897, of the court of .common pleas, Martin was indicted for grand larceny committed on the twenty-second day of December, 1896, The indictment also charged that at the December term, 1877, of the court of common pleas of Wayne county, the defendant as Elbert J. Anderson had been convicted of the crime of grand larceny and sentenced to imprisonment in the penitentiary, and that he was actually imprisoned in the peni-' tentiary under that sentence; and that at the April term, 1893, of the common pleas court of Franklin; county he was convicted and sentenced to the¡ penitentiary for burglary and grand larceny, and: underwent the imprisonment imposed by the. sentence. The defendant specially pleaded in bar • of the allegations of the indictment charging him* as an habitual criminal that on the twenty-fifth, day of June, 1879, the said Elbert J. Anderson' “was given an unconditional pardon for said conviction, sentence and imprisonment by the gov-: ernor of Ohio.” A demurrer to this plea was interposed by the prosecuting attorney and overruled by the court to which ruling the prosecuting attorney excepted.
    
      F. /S. Monnett, Attorney General and George OS Blankner,- for plaintiff in error.
    ■ What is the definition of the word ‘ ‘imprisoned ?’’ It is the confinement of a person in or as if in* prison ; a forcible restraint within bounds.
    • The defendant’s claim is that a pardon restores him to the position he occupied prior to the commission of the crime; that it makes him as inno-. cent as a babe. We admit that it has the effect of restoring him, the same as .the expiration of a sentence, to the rights and privileges he enjoyed and exercised as a citizen before he was committed to prison, but deny that executive clemency, in the form of a pardon, was ever intended to place an individual, who has been guilty of committing á felony, in the position of never having violated-the laws of his country.
    In the case of Mount v. Commonwealth, 2 Duvall (Ky.), 93, the plaintiff had been convicted of a felony and sentenced to three years in the penitentiary. After serving a part of his time he was pardoned by the governor of Kentucky. Shortly after his release from prison, he committed a second crime. It was held by the Supreme Court of Kentucky that the pardon relieved him of the entire penalty incurred by his offense, but nothing more, and a sentence double that of the first was imposed.
    If the contention of the defendant is correct, then the pardoning power of the governor virtually sets a premium upon crimes, and serves as a loophole through which depraved, degraded and hardened criminals may escape the punishment they so richly deserve.
    The Century Dictionary defines a pardon as one expressing the act of an official or a superior, remitting all or the remainder of the punishment that belongs to an offense.
    In the case at bar the defendant was punished one year and a half and then released from serving the balance of his term. We maintain that all the pardon did was to relieve him from the remaining portion of the sentence, and having been imprisoned, section 7388-11 certainly applies.
    
      J. E. Sater, for defendant in error.
    Section 11, article 3, Constitution of Ohio, confers on the governor the power of granting an unconditional pardon for all offenses except treason and cases of impeachment. The legislature may prescribe the manner of applying for pardons, but it can not, and, by the enactment of section 7388-11 did not, restrict the pardoning power of the, governor. Cooley, Constitutional Limitations, 5ed., page 138, star page, 116; Cooley was quoted with approval in Knapp v. Thomas, 39 Ohio St., 392; State ex rel. v. Governor, 5 Ohio St., 528; Diehl v. Rodgers, 169 Pa. St., 316; Singleton v. State, 38 Fla., 297; State v. Sloss, 69 Am. Dec., 467 (25 Mo., 291); State v. McIntire, 59 Am. Dec., 572 (note).
    The defendant’s pardon being unconditional he is entitled to all the fruits of such a pardon, whatever they may be, and regardless of the provisions of section 7388-11.
    What are the effects of an unconditional pardon?
    On the answer to the above question hinges the decision of this case. Courts and text writer» have not always agreed in their definition of the term pardon. Bishop in his New Criminal Law, vol. 1 (1892), section 898, defines pardon ás “a remission of guilt.” His definition is sustained by the Supreme Court of Ohio, of the United States, of Virginia, and by many other courts of last resort. Another class of authorities define pardon as a “remission of the punishment of guilt.” Mount v. Commonwealth, 2 Duvall, 93.
    We attach importance to Bishop, supra for two reasons : First, Bishop relies on Fxpa/rte Garland, 4 Wall., 71 U. S., 333; so did Judge Okey, in his decision of Knapp v. Thomas, 39 Ohio St., 377. Second, Bishop approves the doctrine of Edwards v. Commonwealth, 78 Va., 39, hereinafter referred to at length. The doctrine of the Edwards case is directly contrary to that of the Mount case relied on by the Attorney-General.
    
      The doctrine of the Garland case was but a reiteration of that previously announced by the Supreme Court of the United States, in Armstrong's Foundry v. The United States, 73 U. S., 766 (6th Wall.); Knote v. U. S., 95 U. S. (5 Otto), 149; Lilly’s Abridgment, 270, quoted in Ex parte Hunt, 5 Eng. (Ark.), 288; Bac. Abridg., vol. 5, Tit. “Pardon » Sub. H.
    Other authorities defining the effects of a pardon to be the same as those announced by the Supreme Court of Ohio, are as follows : 17 Am. & Eng. Ency. of Law, 325; Singleton v. State, 38 Fla., 297; Diehl v. Rodgers, et al., 160 Pa. St., 316 ; 47 Am. St., 908; State v. Foley, 15 Nev., 64 ; Carlisle v. United States, 16 Wall., 147; 4 Blk. Com., 402; United States v. McKee, 4 Blk., 128; Cooley's Const. Lim., 5 ed., 137. It follows asa corollary of the preceding authorities as to the effects of a pardon, that pardoned crimes should not be taken into consideration in applying the habitual criminal act.
    The decision in the Edwards case was rendered on November 15, 1883; that in the Mount case was rendered on June 24, 1865. Several of the leading treatises on criminal law have either been revised Or written since the date of the decisions above mentioned. In so far as we are able to discover Bishop, is the only authority that has either cited or commented on the cases, and it is interesting .to note that the great weight of his authority is thrown against the doctrine of the Mount case and in favor of• that of the Edwards case. Bishop, section 919, New Criminal Law.
    The question now before this court was considered in Commonwealth v. Morrow, 9 Phila., 583.
    Section 182 of the Pa. Code referred to in the latter case is the same as section 66, pag’e 560, Brightly’s Purdon’s Dig. (1894); the provision of the Va. Code under -which the Edwards case was decided will be found in Code of Va., 1873, Ch. 195, sections 25 and 26. The Virginia and Pennsylvania courts reach a conclusion different from that of the Kentucky court, the statute under which the Kentucky decision was reached being found in Stanton’s Revised Statutes of Kentucky, vol. I, page 372. The principle running through the several statutes is substantially the same.
   By The Court

It is provided in section 7388-11 of the Revised Statutes that “ Every person who after having been twice convicted, sentenced and imprisoned in some penal institution for felony, whether committed heretofore or hereafter, and whether committed in this state or elsewhere within the limits of the United States of America, shall be convicted, sentenced and imprisoned in the Ohio penitentiary for felony hereafter committed, shall be deemed and taken to bean habitual criminal, and on the expiration of the term for which he shall be so sentenced, he shall not be discharged from imprisonment in the penitentiary, but shall be detained therein for and during his natural life,” etc.

The question presented by the exception is whether a former conviction and imprisonment for a felony on account of which the governor has granted an unconditional pardon may be regarded as one of the former convictions necessary to place the accused in the category of habitual criminals as defined by the act. It may be that the criminal habit is as- certainly indicated ' by the commission of felonies for which unconditional pardons have been granted as by those whose penalties have been suffered to the end. But we must presume that the legislature enacted this section intending that the language should be construed according to the commonly received view as to the effect of a pardon. That view with reference to legislation of this character is that “If a second offense is made by statute more heavily punishable than the first, then if the first is pardoned, it is obliterated. The consequence of which is that a like offense afterward committed is not a second, and is punishable only as a first.” Bishop New Cr. L., section 919. Edwards v. Commonwealth, 78 Va., 39. The case of Mount v. Commonwealth, 2 Duvall, 93, has not been accepted as a .correct statement of the law.

Exception overruled.  