Bolton v. State
| Decision Date | 06 March 1933 |
| Docket Number | 30454 |
| Citation | 146 So. 453,166 Miss. 290 |
| Court | Mississippi Supreme Court |
| Parties | BOLTON v. STATE |
Suggestion Of Error Overruled March 20, 1933.
APPEAL from circuit court of Perry county HON. W. J. PACK, Judge.
Tom Bolton appeals from an order directing the execution of a suspended criminal sentence. Affirmed.
Affirmed.
A. T. L. Watkins, of New Augusta, for appellant.
Suspending during "good behavior" is as indefinite and uncertain as the weather; good behavior in the mind of some persons would be violated, if he had played at cards, and by others, it would be diabolical, for him to dance, it certainly would not be good behavior to violate the game law and a thousand other things we might mention: The terms of the suspension, whatever they were were unknown, they should have been set out in the judgment or the sentence it might happen, just as it did, the trial judge would go out of office and a new judge come in that knew nothing of the terms or condition, nor the merits of the case.
Section 1339, Code 1927, in effect September, 1928, authorized the suspension of sentence, "for a definite period of time." We fail to find any authority in law, for an indefinite suspension or a lifetime probation.
A suspension of a sentence must be for a definite time as well as definite terms, under Section 2309, Code 1927.
The court will please take notice that it was not an attempt to sentence, but an attempt to revoke a suspension of a void sentence.
After the close of the term, at which the judgment was rendered the court was without power to amend its judgment, which as we remember is in conformity to common law.
Section 1339, Code of 1927; Buck v. State, 60 So. 322.
If the court sustains this incarceration in my humble judgment we will have some new law.
Vol 37, United States Supreme Court Reporter, page 72.
We may suspicion, but the wisdom of the law is such that it refuses to allow any person to be punished for any crime however strong and well founded the suspicion, there must be proof.
McComb City v. Hill, 56 So. 346.
The Fuller Case, 57 So. 806, has no application here, because at that time there was no authority to suspend any sentence, nor even a semblance of authority, the court holding that when a court pronounced a sentence, it could not be recalled, it has never devolved on any person to request for incarceration, especially on suspicion, that partakes of the nature ridiculous.
W. D. Conn, Jr., Assistant Attorney-General, for the state.
At the time this plea of guilty was accepted, chapter 189 of the Laws of 1918, was in full force and effect. Section 2, and section 17 of this chapter define the crime and fix the punishment. It is also interesting to note that the provisions of this chapter 189 of the Laws of 1918 are brought forward as a part of section 1974 of the Mississippi Code of 1930.
The statute in force at the time this suspension was granted appears as section 1338 of Hemingway's Code of 1927 and there is no time limit imposed by this statute.
Appellant contends that the successor of the trial judge who granted this suspension had no right to revoke it. I submit that the statute, above quoted, provides for no such restrictions and refers to the office of circuit judge rather than to the particular person occupying that position at any particular time.
It was held that where a judgment in a criminal case has been suspended on the condition of payment of costs and good behavior, the term "good behavior" means conduct that is authorized by law and "bad behavior" means conduct such as the law will punish.
State v. Hardin, 183 N.C. 815, 112 S.E. 593.
The term "good behavior" as used in the order suspending sentence upon a defendant during good behavior, means merely conduct conformable to law.
Ex parte Hamm, 24 N.E. 3, 172 P. 190; U. S. v. Hrashky, 240 Ill. 560, 88 N.E. 1031; In re Spenser (U. S.), 22 F. Cas. 921.
The term "good behavior" as used in the statute and as used in the order of the court, suspending a part of this sentence, means that so long as the defendant abides by the law and lives and acts as a law-abiding citizen, particularly so far as prohibition laws are concerned, the suspension would last indefinitely, and that the use of the term "good behavior" does not render the suspension void for uncertainty and indefiniteness.
Section 2309 is a part and parcel of chapter 210, Laws of 1922, and has no application to any of the balance this state, and, under the general statute, section 1338 of Hemingway's Code of 1927, the court had authority of the statutes on the subject of intoxicating liquors in to suspend this sentence.
This is an appeal from an order directing the execution of a suspended criminal sentence. The appellant's complaints are: (1) That the sentence originally imposed is excessive; (2) that the suspension of the execution of the sentence was for an indefinite period and therefore void, and that, the term of court at which the judgment suspending the sentence was rendered having passed, the court was without power to order the sentence to be executed; (3) that, if the suspension of the sentence is valid, the appellant was not shown to have violated the terms thereof; and (4) that the court was without power to revoke the suspension of the sentence, for the reason that the judgment of which the suspension is a part was rendered more than two years before the order of revocation was entered.
The indictment on which the original judgment of conviction was rendered is not in the record, and, although the appellant had ample opportunity so to do, he failed to make it a part thereof. The judgment does not disclose the offense for the commission of which the appellant was sentenced; its language is as follows:
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