Gerard v. State, 5048

• Court: Supreme Court of Arkansas
• Writing for the Court: HARRIS; HOLT
• Citation: 235 Ark. 1015,363 S.W.2d 916
• Parties: Julius GERARD, Jr., Appellant, v. The STATE of Arkansas, Appellee.
• Docket Number: No. 5048,5048
• Decision Date: 21 January 1963

Page 916

363 S.W.2d 916 235 Ark. 1015 Julius GERARD, Jr., Appellant,
v.
The STATE of Arkansas, Appellee. No. 5048. Supreme Court of Arkansas. Jan. 21, 1963.

Sam Montgomery, N. Little Rock, for appellant.

J. Frank Holt, Atty. Gen., by Russell G. Morton, Asst. Atty. Gen., Little Rock, for appellee.

HARRIS, Chief Justice.

This appeal involves the question of the proper method of revocation of a suspended sentence. Appellant, Julius Gerard, Jr., was charged with and convicted, of the crime of Assault with a Deadly Weapon in the Pulaski Circuit Court on May 25, 1961. The jury fixed appellant's punishment at a fine of $1,000 and one year's imprisonment. Suspension of the penalty was recommended to the court. The court

Page 917

complied partly with the recommendation of the jury by suspending the imprisonment, but refused to suspend[235 Ark. 1016] the fine, giving Gerard one week in which to pay same. ¹ On March 27, 1962, a bench warrant was issued for appellant, wherein he was again charged with Assault with a Deadly Weapon (an entirely separate and distinct charge from that of which he was originally convicted). The court refused to allow bond, and on March 29, Gerard was brought into court in custody of the sheriff. Appellant moved for a continuance, but this motion was denied, at which time the court made the following statement,

'Certain information has come to the Court's knowledge that the defendant here has been in some trouble at a colored honkytonk sometime ago--I don't remember just when, and he has further been in trouble--or is in trouble now--on a gaming charge at the AmVet's Post Number Sixty in North Little Rock, which case is now pending before the Municipal Court of North Little Rock--set for trial on the twelfth. It is the Court's further understanding that bond was forfeited on a charge of assault with a deadly weapon two or three days ago, in a disturbing the peace court. I am just making a statement. The purpose of this hearing, of course, is to consider the revocation of a suspended sentence imposed on 5-25-61.'

After hearing the testimony of seven police officers of Little Rock and North Little Rock, ² the court announced that the suspended sentence was being revoked. Counsel for appellant stated that he desired to call witnesses, but the court refused this request, stating, 'I don't think you have got any right to call witnesses. This is a summary proceeding.' The court also refused to permit appellant to say anything, and entered its judgment, finding that Gerard had violated the terms of his suspension, and that the suspended sentence should be revoked and the defendant committed. Appellant moved for an appeal to the Supreme Court, and asked that bond be fixed, pending the appeal. The motion was denied by the trial court, but on April 18, 1962, this court [235 Ark. 1017] granted an appeal and fixed bail, pending disposition of the appeal, in the sum of $2500.

For reversal, appellant first urges that the court had no jurisdiction on March 29, 1962, to take any action on the judgment rendered on May 25, 1961, since that judgment was final. We do not agree. Of course, the judgment was final in the sense that it was appealable, but it certainly was not final in the sense that it was irrevocable. The meaning of the word, 'suspended', (Webster's Third New International Dictionary) is 'temporarily debarred, inactive, held in abeyance.' In fact, we have already held contrary to appellant's contention. In State Medical Board v. Rodgers, 190 Ark. 266, 79 S.W.2d 83, quoting from an earlier case, Huddleston v. Craighead County, 128 Ark. 287, 194 S.W. 17, we said,

"It was not necessary to decide in that case whether it could be done or not. However, we are now called upon to confirm the doubt there expressed; and we do now so hold. The judgment rendered is not a final one. Evidently, it was in the contemplation of the court that some further order might be entered. The defendant...