Calloway v. State

• Decision Date: 09 December 1940
• Docket Number: 4181
• Citation: 145 S.W.2d 353,201 Ark. 542
• Parties: CALLOWAY v. STATE
• Court: Arkansas Supreme Court

145 S.W.2d 353

201 Ark. 542

CALLOWAY v. STATE

4181

Supreme Court of Arkansas

December 9, 1940

Appeal from Madison Circuit Court; J. W. Trimble, Judge; affirmed.

Judgment affirmed.

Jack Holt, Attorney General, and Jno. P. Streepey, Assistant Attorney General, for appellee.

OPINION

HOLT, J.

March 6, 1934, appellant, Connie Calloway, entered a plea of guilty, in the Madison circuit court, to the crime of assault with the intent to kill. The court assessed his punishment at ten years in the state penitentiary, with the provision however, that the sentence should be suspended pending appellant's good behavior. Appellant was then allowed his liberty and no further action taken in the matter until December 12, 1939, when the prosecuting attorney of the district filed a petition praying that the order suspending sentence be set aside, that appellant be sentenced to the penitentiary, and final judgment entered.

Thereafter upon a hearing on this petition before the court, from the testimony of witnesses, the court made the following findings:

"That defendant, Connie Calloway, was convicted of the crime of assault with intent to kill, in this court, on the 6th day of March, 1934; that such conviction was upon the plea of guilty of said defendant; . . . . and made a part of the record herein; that upon such plea of guilty and conviction, the court adjudged that defendant should serve a sentence of ten years in the Arkansas Penitentiary; that pronouncement of such sentence should be suspended during the good behavior of defendant; that subsequent to such order of suspension defendant has been guilty of a misdemeanor, the record of conviction for which was duly introduced herein; that said defendant has been guilty of selling beer and wine to minors in violation of the law; that said defendant was a party to, or had knowledge of the attempted subornation of a witness subpoenaed to appear against him herein; that defendant had knowledge of the perpetration of grand larceny of cattle in Madison county during the latter part of 1939 by persons other than himself; that he was invited to participate in such grand larceny, and refused only because of the inclement weather at the time. Based upon the evidence adduced, the court finds that since the date of such conviction, said defendant has not conducted himself in such manner as was contemplated by the good behavior provision of such suspension; that by reason of his conduct as shown by the proof, defendant is no longer entitled to the further and continued leniency accorded him by this court at the time of such conviction and suspension of sentence."

The court then revoked the order suspending appellant's sentence and proceeded to sentence him for a term of one year, in the state penitentiary and "that pronouncement of sentence of the remaining nine years be suspended until further orders of this court." It is from this order of the court that this appeal comes. No brief has been filed on behalf of appellant.

The question here involved is the power of the circuit court to determine whether a person who has been given a suspended sentence, may thereafter be tried, his suspended sentence revoked, and sentence imposed.

We think it clear under the provisions of §§ 4053-4054 of Pope's Digest that such power is vested in the circuit court. These sections are as follows:

Section 4053. "Whenever, in criminal trials in circuit court, a plea of guilty shall have been accepted or a verdict of guilty shall have been...