Marshall v. Com.

• Decision Date: 10 October 1960
• Docket Number: No. 5153,5153
• Citation: 116 S.E.2d 270,202 Va. 217
• Court: Virginia Supreme Court
• Parties: JAMES NELSON MARSHALL v. COMMONWEALTH OF VIRGINIA AND CITY OF NORFOLK. Record

Page 270

116 S.E.2d 270

202 Va. 217

JAMES NELSON MARSHALL v. COMMONWEALTH OF VIRGINIA AND CITY OF NORFOLK.

Record No. 5153.

Supreme Court of Appeals of Virginia

October 10, 1960.

Howard I. Legum (Fine, Fine, Legum, Weinberg & Schwan, on brief), for the appellant.

Reno S. Harp, III, Assistant Attorney General and Virgil S. Gore, Jr., Assistant City Attorney (A. S. Harrison, Jr., Attorney General; Leonard H. Davis, City Attorney, on brief), for the appellees.

BUCHANAN, J., delivered the opinion of the court.

On August 4, 1958, in the Police Court, the defendant was found guilty of violating penal laws of the Commonwealth and of the City in four separate cases and was sentenced to thirty days in jail and a fine in each case. The jail sentences were suspended for twelve months in this language, endorsed upon each warrant with a rubber stamp: 'Jail sentence suspended 12 mos. on payment of fine & cost'.

On May 26, 1959, the defendant was tried in the Corporation Court on an indictment charging him with receiving stolen goods, grand larceny and as accessory after the fact, and was found not guilty by a jury. On June 2, 1959, the defendant was brought before the Police Justice, the suspensions of his jail sentences were revoked, and he appealed to the Corporation Court, as allowed by § 53-275 of the Code. After a hearing in that court the revocation of the suspensions was affirmed, the defendant was ordered to jail to serve the jail sentences which had been suspended, and we granted him this appeal.

On the hearing in the Corporation Court the Commonwealth offered the evidence of a Norfolk police officer who introduced a written statement made by the defendant on March 8, 1959. In this statement the defendant related the part he had played in disposing of an adding machine which the officer testified had been stolen, and which was also exhibited in evidence. In substance the statement was that in a store in Norfolk defendant met one Roger (a sailor), who told him he was going back to New York that night and was running short of cash; that he had an adding machine outside in his car that he wanted to sell and asked the defendant if he knew anybody who could use it or wanted to buy it. After making one effort which failed, the defendant asked a woman who came into the store if she would be interested and told her of Roger's hard-luck story. Roger gave defendant the keys to his car and defendant took her out and showed her the machine, which was in a pasteboard box in the back of the car. He told her she was getting a bargain because it looked brand new, and that 'it may be stolen or 'hot". She agreed to buy, paid defendant $45, he delivered the machine to her and went back into the store where he gave Roger the money and Roger gave him back $15 for making the sale.

The defendant introduced three witnesses whose testimony related primarily to defendant's behavior and did not controvert the evidence for the Commonwealth.

The defendant now contends that the Police Court and the Corporation Court did not have jurisdiction to revoke the suspensions of the jail sentences because there was no condition of good behavior attached to the suspensions, but only that the fine and costs be paid, which had been done.

Defendant did not make that contention in the court below. He relied there on the proposition that there could be no revocation since the jury had found him not guilty of the charges on which the revocation was based. The record does not show upon what ground the police court revoked the suspensions. The presumption is that it was upon a valid finding that the defendant had in some manner violated the conditions of the suspensions. Slayton v. Commonwealth, 185 Va. 357, 369, 38 S. E. 2d 479, 485.

While the language of the suspensions does not in terms include a condition of good behavior, that condition is implicit in every such suspension and constitutes the origin and purpose of the suspension and probation statutes. The Commonwealth desires the reformation of the criminal and in furtherance of that purpose its statutes provide for suspension and probation in cases where there are mitigating circumstances or when it is compatible with the public interest. These statutes are highly remedial and are to be liberally construed. When a trial court suspends a sentence it 'does not make a contract with the accused, but only extends to him the opportunity which the State affords him to repent and reform.' Richardson v. Commonwealth,131 Va. 802, 810-11, 109 S. E. 460, 462.

The statutes here involved are §§ 53-272 and 53-275. The first provides that 'the court may suspend the execution of sentence * * * and may also place the defendant on probation under the supervision of a probation officer, during good behavior, for such time and under such conditions of probation as the court shall determine.'

Since the original statute, Acts 1918, ch. 349, p. 528, we have recognized that the power thus given is to be exercised on condition that the defendant be of good behavior and we said so in Slayton v. Commonwealth, supra, 185 Va. at 365, 38 S. E. 2d at 483; and in Dyke v. Commonwealth, 193 Va. 478, 484, and at 490 (dissenting opinion), 69 S. E. 2d 483, 486, 490. While the precise point has not previously been in issue, we now hold, in view of the purpose and history of the statute and the liberal construction to be given it, that the proper...