THE OKLAHOMA LAW JOURNAL EDITED AND PUBLISHED MONTHLY BY D. H. FERNANDES, GUTHRIE, Oklahoma. UNIFORM JUDICIAL PROCEDURE. No. 4 Courts draw their power and have their being in the faith and confidence of men and not on account of the constitutions and statutes that brought them into existence. Judicial procedure is made possible by the trinity of faith, respect and obedience. I think it may be safe. ly said in this learned presence that there is no law ever yet devised that could sustain an authority over a thoughtful civilized people in. which they have not faith and con. fidence. And in this connection there comes another and more troubling thought. Judge's Responsibility is Individual. However the courts may be constituted, with a judge this great responsibilty is individual. He must meet it. Holding in almost absolute power the life, liberty and property of a people, his senses deadened to the allurement of beauty, the attractions of wealth, the subtlety of influence and all other things that most appeal to the hu man instincts; his heart deaf to ambition's persuasive pleading, but ever alert to the call of impartial justice, the judge stands unprotected before a critical people in an honored isolation. Literature has been enriched in the expression of that sentiment by Mr. Justice Holmes in a recent address before the Harvard Law School Asso. oiation. In lines of transcendent beauty there is portra ed his splended spirit, mellowed with age and faithful service on the greatest court in the world. looking "beyond the vision of battling races and an impoverished earth" in order to "catch a dreaming glimpse of peace." Appellate Courts Should Prepare all Procedure. Yet, under the policy of Congress and that of nearly all the states the judge is bound hand and foot by an aggregation of archaic, inflexible, unrelated statutes defining his conduct, made piecemeal by the legislative branch of the government. These he is sworn to follow and obey though injustice be done in his very presence. That is the result of exclusive legislative control over the detail machinery of the courts. As a result, the courts have been accused of incompetency and the lawyers. of indifference and insincerity regarding a condition they did not create and are helpless and almost hopeless to alter. The concomitant of responsibility in any relation is the power and facility to properly perform the required duty. If the Bench and Bar are to be held responsible for the results of court procedure they should be allowed to prepare and gradually perfect that procedure, the legislative department retaining control over all jurisdictional and fundamental matters. I do not fear to restate it in the presence of these great jurists that the failure to promptly do away with admitted hardships arising out of the present system has done more to prejudice the people against courts and lawyers than any other juridical element. Ignorance on the part of laymen and the press has enabled helplessness to be mistaken for indifference and even for deliberate wrong. It is not to be reasonably assumed that Congress, seeing the evil consequences of present conditions, will fail to act favorably and promptly. Meanwhile, patient acquiescence that has characterized the Bench and Bar has ceased to be a virtue, but has become a public menace. Let the light be turned on, that the responsiblity may rest where it belongs and the people may seek relief where it alone may be found. THE CRIMINAL COURT OF APPEALS OF IN THE MATTER OF THE APPLICATION HABEAS CORPUS. WRIT ALLOWED. No. A-2058 Petitioner Discharged. (Filed October 4th, 1913.) 1. A pardon is an act of grace and mercy bestowed by the state through its Chief Executive, upon offenders a gainst its laws, after conviction, and a full uncondition. al pardon reaches both the punishment prescribed for the offense and the guilt of the offender; it obliterates in legal contemplation the offense itself, and hence, its effect is to make the offender a new man. 2. A pardon taken effect upon delivery either to the person who is the subject of the favor, or to some one acting for him or on his behalf. 3. A full unconditional pardon, delivered is irrevocable. 4. This court has no power to control, or in any manner interfere with the functions of the Executive department of the state government, but it has jurisdiction and power to inquire, upon Habeas Corpus, into the validity of a pardon under which the petitioner seeks to be discharged from the penitentiary, where after the delivery of the pardon he is detained in the custody of the warden upon an order of the Governor purporting to revoke the pardon. 5. The pardon in this case was granted by the Lieutenant Governor acting as Governor in the absence of the Governor from the state: HELD: That under the Constitution Art. 6 Sec. 16 (165 Williams), in the absence of the Governor from the state for any purpose or for any period of time the con stitutional functions of his office devolve pro tempore upon the Lieutenent Governor, and a pardon granted and delivered by the Lieutenant Governor as acting Governor, in the absence of the Governor from the state, is a valid and effectual pardon. A FORTIORI, the warden had no power to disregard it and the Governor's order purporting to revoke such pardon was necessarily a nullity. (Syllabus by the Court.) STATEMENT OF THE CASE. On behalf of George Crump Jr., a duly verified petition for a Writ of Habeas Corpus was presented to the Presiding Judge of this court, representing that he was illegally restrained of his liberty and unlawfully imprisoned in the state penitentiary by R. W. Dick, Warden. It is further averred in said petition, that: "The cause of said restraint according to the best of the knowledge and belief of your petitioner, is that the said George Crump, Jr., was by the Superior Court of Pottawatomie County, Oklahoma, convicted of the crime of forgery, said conviction on appeal to this Honorable court was affirmed (7th Okla. Cr. 535, 124 Pac. 632), and said petitioner sentenced to said penitentiary for a period of seven (7) years, said term of imprisonment commencing on June, 1912, but your petitioner alleges that said restraint is illegal and unauthorized because he says, that on the 2nd day of August, 1913, the Honorable Lee Cruce, Governor of the State of Oklahoma, being absent from the State of Oklahoma, to-wit, at Kansas City, Missouri, the Hon. J. J. McAlester, Lieutenant Governor of the State of Oklahoma, during the absence of Governor Cruce from the State of Oklahoma, and while Governor Cruce was still absent from the State of Oklahoma, granted your petitioner a full, complete and unconditional pardon for the offense of which he was convicted, as above set forth, said pardon being signed by the said J. J. McAlester acting Governor of the State of Oklahoma, and sealed with the Great Seal of the State of Oklahoma, and attested by Benjamin F. Harrison, Secretary of the State of Oklahoma, which said pardon was then and there delivered to the Father of your petitioner, who was and is acting for and in his behalf, a duplicate of said pardon is hereto attached and asked to be taken and considered as a part of this petition.' The duplicate of said pardon is as follows: "State of Oklahoma, Executive Department. The Acting Governor of the State of Oklahoma, to all who shall see these presents, Greeting: Know Ye, That I, J. J. McAlester, Lieutenant Governor of the State of Oklahoma, and as such the acting governor of the State of Oklahoma in the absence from the said State of the Hon. Lee Cruce, Governor of the State of Oklahoma, do hereby, under and by virtue of the authority vested in me by the Constitution of the State of Oklahoma, grant unto Geore Crump, Jr., who was convicted at the January 1911 term of the Superior Court of Pottawatomie County, Oklahoma, of the crime forgery and sentenced to imprisonment in the State penitentiary at McAlester, for the term of seven years, a full, complete and unconditional pardon for the offense of which he was convicted as aforesaid. IN WITNESS WHEREOF, I have hereunto set my hand at Oklahoma City, the Capital, this 2nd day of August, 1913, and do hereby direct the Secretary of State forth with to affix the Great Seal of the State of Oklahoma hereto and to attest the same with his signature. J. J. McAlester, (SEAL) Acting Governor of the State of Oklahoma. By the Governor, Benjamin F. Harrison, Secretary of State." A Writ of Habeas Corpus was issued by Presiding Judge Armstrong, directed to the respondent, who on August 14th, the day it was returnable produced the pe |