Cooper v. State

• Decision Date: 18 May 1936
• Docket Number: 32201
• Court: Mississippi Supreme Court
• Parties: COOPER v. STATE

168 So. 53

175 Miss. 718

COOPER v. STATE

No. 32201

Supreme Court of Mississippi

May 18, 1936

Division B

1. CRIMINAL LAW.

Appeals to Supreme Court are not matters of right under common law but are allowable only in cases and in manner provided by statute (Code 1930, sections 16, 1300).

2. CRIMINAL LAW.

Order revoking suspension of sentence of accused who had pleaded guilty of unlawful possession of intoxicating liquors held not appealable (Code 1930, sections 16, 1300).

3. CRIMINAL LAW.

Where hearing with respect to revocation of suspended sentence is public and on reasonable notice and evidence is sufficient to convince reasonable person that conditions of suspension have been broken, convict has no recourse when judge revokes suspension except to serve sentence and pay fine in so far as theretofore suspended, and in any event convict has no recourse by appeal (Code 1930, sections 16, 1300).

HON. W J. PACK, Judge.

Appeal from circuit court of Forrest county HON W. J. PACK, Judge.

Frank Cooper pleaded guilty to the unlawful possession of intoxicating liquors and received a partially suspended sentence. From an order revoking the suspension, the defendant appeals. Appeal dismissed.

Appeal dismissed.

Hearst, Pittman & Pittman of Hattiesburg, for appellant.

The evidence offered in behalf of the state and against the appellant is wholly insufficient to justify the revoking of the appellants' suspension of sentence.

We have examined most of the Mississippi reports and have not found any case which might enlighten the court on this subject; unless it is the McLemore case, 155 So. 415. In that case Judge ANDERSON says that "It is only necessary that, the court be convinced that the condition of the suspension has been violated."

In his opinion however in this particular case Judge ANDERSON says "the evidence was ample to show that the appellant was guilty not only of the unlawful possession of intoxicating liquor, but also was engaged in the unlawful manufacture of it."

We are not contending that the state would have to show that the appellant violated the condition of the suspension beyond a reasonable doubt, but we do contend that it was incumbent on the state to show that the appellant had violated the law in some respect before the court would be warranted in revoking his suspension of sentence.

W. D. Conn Jr., Assistant Attorney-General, for the state.

Appeals from the circuit court to the Supreme Court lie under section 13, Code of 1930, from final judgments only; consequently, the appeal here will not lie unless the order appealed from is a final judgment within the meaning of this statute.

McLemore v. State, 155 So. 415.

And, in determining whether an order revoking a suspended sentence is an appealable final judgment, the provisions of section 1300, Code of 1930, are clearly helpful.

It will be observed that the statute not only provides for no appeal, but apparently by necessary implication negatives that right by providing: "And shall be subject, after such action by the court to arrest and return to proper authorities as in the case with ordinary escaped prisoner."

Since the statute provides that a trial judge may revoke the suspension in the vacation of the court, it seems that such an act is in the same class as the act of a judge or chancellor in granting or refusing a remedial writ under section 742, Code of 1930, from which no appeal lies.

Alexander v. Woods, 130 Miss. 869, 60 So. 1017; Wynne v. Illinois Central R. R. Co., 108 Miss. 376, 66 So. 410.

Assuming that he is entitled to a review here, it is virtually necessary for the record to show that the court acted arbitrarily and in defiance of the weight of the evidence, before his decision would be interfered with by this court. The statute only requires that the trial judge or court, as the case may be, be "convinced by proper showing."

Section 1300, Code of 1930.

The facts of this case are quite as "convincing," if not more so, as the facts reflected in the Bolton case, 166 Miss. 290, 146 So. 453.

OPINION

Griffith, J.

On July 10, 1935, appellant entered a plea of guilty to an indictment for the unlawful possession of intoxicating liquors, and the court sentenced him to pay a fine of five hundred dollars and to serve ninety days in jail; but all of the said sentence except one hundred fifty dollars and thirty days was suspended during the good behavior of the defendant. On December 3, 1935, the district attorney filed a petition to have the defendant cited to show cause why the suspension should not be revoked, upon which petition the circuit judge ordered citation to issue, requiring the defendant to appear before the court on January 3, 1936. On that day a public hearing was had, and upon the evidence adduced, the court revoked the former suspension of sentence, and required the defendant to pay the remainder of the fine and to serve the remainder of the days of imprisonment. From the order of the court revoking the suspension, the defendant has appealed, assigning as his ground of complaint that the evidence was not sufficient to show that he had been guilty of misbehavior.

The state has raised the question that no appealable case is here presented, and, as foreshadowed in McLemore v State, 170 Miss. 641, 155 So. 415, we are of the opinion that the point is...