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People ex rel. Patrick v. Frost

Supreme Court of New York, Appellate Division

June 4, 1909


Habeas corpus by the People, on the relation of Albert T. Patrick, against Jesse D. Frost, as Agent and Warden of Sing Sing State Prison. Writ dismissed, and prisoner remanded.

Where power to remit a death sentence, imposed by law for murder, to life imprisonment, exists at the time of the commission of a murder, the exercise of that power by the Governor is not an ex post facto act, prescribing a different punishment than the one imposed by law.

[117 N.Y.S. 526] Albert T. Patrick and William L. McDonald, for the writ.

William Travers Jerome, Dist. Atty., Robert C. Taylor, and Francis A. Winslow, opposed.



This is a writ of habeas corpus to inquire into the cause of the imprisonment of the relator, Patrick. The return shows that Patrick was convicted of murder in the first degree, and judgment was pronounced against him whereby he was sentenced to be put to death; that the Governor commuted the sentence of death to imprisonment for life; and that Patrick is imprisoned under the judgment as so commuted. Both judgment and commutation are attacked. I shall consider first the commutation.

It is contended that a punishment of death cannot be commuted, because commutation is limited to the " same kind and degree of punishment," and that there cannot be any punishment of the same kind or degree as death. None of the cases cited by the relator justifies this limitation. It does not appear in the general or specific definitions of the word in Stormonth, the Century Dictionary, Webster, or Worcester. Bouvier defines commutation as:

" The change of a punishment to which a person has been condemned into a less severe one."

Anderson's definition is:

" The substitution of a less for a greater penalty or punishment; the change of one punishment for another and different punishment, both being known to the law."

And I think we may define it as the power to change a greater punishment to a less punishment, of which both are known to the law. Lee v. Murphy, 22 Grat. (Va.) 789-798, 12 Am. Rep. 563; Rich v. Chamberlain, 107 Mich. 383, 65 N.W. 235; State v. Peters, 43 Ohio St. 651, 4 N.E. 81; Ex parte Janes, 1 Nev. 321; State v. State Board of Corrections, 16 Utah, 478, 52 P. 1090; Ogletree v. Dozier, 59 Ga. 802; Young v. Young, 61 Tex. 193.The Legislature, by its enactment that homicide may be punished by death or imprisonment according to the degrees thereof (Penal Code), recognized that the two punishments are so much of the same degree or kind that either may be meted out for that crime.

I have no doubt that the Governor had the power of commutation in this case. Since 1846 he has been empowered by the Constitution " to grant reprieves, commutations and pardons after conviction, for all offenses except treason and cases of impeachment, upon such conditions and with such restrictions and limitations, as he may think proper." The express exceptions prove " the comprehensive nature of the power." Perkins v. Stevens, 24 Pick. (Mass.) 278.Murder in the first degree is an offense ( People ex rel. Kopp v. French, 102 N.Y. 587, 7 N.E. 913), and hence this general expression of the Constitution can include murder in the first degree, and that crime cannot be put within the exceptions without violation of the canon of construction that courts do not curtail the general rule, to which the exceptions are express, by extending the exceptions by implication. Sutherland on Statutory Constructions, § 328.

[117 N.Y.S. 527] Moreover, this argument of implication rests alone upon a limitation of the word " commutation," which I have shown is not warranted. This contention of the relator would withhold from the executive a power frequently exercised since 1846, never questioned or doubted as far as I can find, and recognized by the highest court of the state. See People v. Broncado, 188 N.Y. 150, 80 N.E. 935. Denio, J., in his discussion in Hartung v. People, 22 N.Y. 105, says:

" If it is to be construed to vest in the Governor a discretion to determine whether the convict should be executed, or remain a perpetual prisoner at hard labor, this would only be equivalent to what he might do under the authority to commute a sentence. But he can, under the Constitution, only do this once for all. If he refuses the pardon, the ...

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