
    GOSS v. STATE.
    (No. 10832.)
    Court of Criminal Appeals of Texas.
    June 8, 1927.
    Rehearing Denied Oct. 26, 1927.
    I. Pardon <&wkey;>6 — Under constitutional provision granting Governor power to commute punishment after “conviction,” pardon granted pending appeal is valid! (Const, art. 4, § II).
    ' Under Const, art. 4, § 11, vesting in Governor power to commute punishment after conviction, pardon granted pending appeal is valid; “conviction” as used meaning verdict of guilty.
    [Ed. Note. — For- other definitions, see Words and Phrases, First and Second Series, Convicted — Conviction.]
    2. Criminal lav/ <&wkey;ID26 — Issuance of clemency proclamation and acceptance by accused1 pre-eluded prosecution of appeal from judgment.
    Issuance of clemency proclamation and acceptance thereof by accused, after accused had given notice of appeal, precluded prosecution of appeal from judgment of conviction of murder.
    3. Bail <&wkey;44 — Accused’ having, by accepting executive clemency, waiyed right of appeal, his discharge on bail pending appeal was destroyed.
    Accused having, by acceptance of executive clemency, waived his right of appeal, his discharge on bail pending appeal was likewise destroyed.
    Appeal from District Court, Hunt County; J. M. Melson, Judge.
    S. E. Goss was convicted of murder, and he appeals.
    Appeal dismissed.
    Cunningham & Lipscomb, of Bonham, for appellant.
    Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   MORROW, P. J.

Murder is the offense; punishment fixed at confinement in the- penitentiary for a period of 25 years.

A motion to dismiss the appeal is made by the state. It.appears that the appellant, on the 14th day of October, 1926, was convicted in the district court of Hunt county, Tex., of the offense of murder, and his punishment fixed at confinement in the penitentiary for a- period of 25 years. Notice of appeal was given on the 27th day of November following. After the notice" of appeal, and before the record was filed in this court, the Governor of this state, on the 10th day of January, 1927, commuted the punishment of the appellant to confinement in the penitentiary for a period of 2 years. This act of clemency was accepted in writing by the appellant upon the same day. After the preliminary recitals, the proclamation of the Governor reads thus:

“Therefore, under the powers vested in. me as Governor of the state of Texas, I hereby reduce and commute the said sentence from five to twenty-five years assessed against the defendant, S. E. Goss, in the district court of Hunt county, Texas, to a term of two years’ confinement in the penitentiary, said term to begin on the 10th day -of January, A. D. 1927, and to continue two years under the rules, regulations, and laws governing penitentiaries.”

After the proclamation was issued and accepted, the appellant, over the opposition of the state’s attorney, was admitted to bail pending his appeal, and is now at large on bond. The Constitution has vested in' the Governor the power to commute the punishment “after conviction.” See Const, of .Texas, art. 4, § 11. While in some sense the term “conviction” applies to a final judgment qf guilty, that term, as used in our Constitution, means a verdial “of guilty,” and a pardon granted pending appeal is valid. See Ruling Case Law, vol. 20, p. 540; Duke v. State, 106 Tex. Cr. R. 154, 291 S. W. 539; also State v. Alexander, 76 N. C. 231, 22 Am. Rep. 675; Gilmore v. State, 3 Okl. Cr. 639, 108 P. 416, 139 Am. St. Rep. 981; State v. Garrett, 135 Tenn. 617, 188 S. W. 58, L. R. A. 1917B, 567; People v. Marsh, 125 Mich. 410, 84 N. W. 472, 51 L. R. A. 461, 84 Am. St. Rep. 584. The issuance of the clemency proclamation and the acceptance thereof by the accused precludes the prosecution of an appeal from th.e judgment. See precedents cited above; also State v. Goddard, 69 Or. 73, 133 P. 90, 138 P. 243, Ann. Cas. 1916A. 146; Ruling Case Law, vol. 20, p. 560, § 45.

Appellant suggests that the lowest penalty for murder is confinement in the penitentiary for a period of 5 years, and that the commutation reducing the sentence to 2 years operates to discharge the appellant altogether. . Under this proposition he refers to precedents affecting the right of one accused to decline to accept the executive clemency. See Ruling Case Law, vol. 20, p. 530, § 11. The clemency, having been accepted in the present case, the precedents mentioned are not deemed applicable.

The appellant having, by the acceptance Of the executive clemency, waived his right of appeal, it follows that his discharge on bail pending the appeal is likewise destroyed.

Eor the reasons stated, the appeal is dismissed. 
      $&wkey;For other cases see same topic and KEY-NUMBER-in all Key -Numbered Digests and Indexes
     