Mason v. Cochran, 37607
| Decision Date | 08 May 1950 |
| Docket Number | No. 37607,37607 |
| Citation | 46 So.2d 106,209 Miss. 163 |
| Parties | MASON v. COCHRAN, Sheriff. |
| Court | Mississippi Supreme Court |
Frank Clark, Waynesboro, Homer W. Pittman, Hattiesburg, for appellant.
John W. Kyle, Atty. Gen., Geo. H. Ethridge, Asst. Atty. Gen., for appellee.
Release from custody was sought by the appellant, Julian C. Mason, on petition for habeas corpus against the appellee, James C. Cochran, Sheriff of Wayne County, on the ground that the action of the circuit judge on September 5, 1949, in revoking a suspended sentence imposed by him against the appellant on July 19, 1948, on a criminal charge, and in ordering him to be held by the sheriff in the county jail until he had paid $400 of the suspended portion of the fine and served four months of the suspended jail sentence, was null and void for the want of due process of law for the reason that the order declaring the suspended sentence to be revoked in that regard was without notice to the appellant and made in his absence; and because no public hearing was held on the ex parte application of the officers to have the suspension revoked, and no opportunity was otherwise afforded the appellant to be heard as to whether or not he had violated the conditions on which he was granted his liberty by the court at the regular 1948 term thereof.
The appellant had plead guilty at the said July 1948 term of the court to a willful trespass under an indictment for grand larceny, and was sentenced to serve six months in the county jail and pay a fine of $500 and all court costs. This judgment was thereupon suspended upon payment of $50 of the fine and all of the court costs. The suspension of the sentence which had been imposed was 'during his good behaviour'. The judgment recited that it was agreed that the court would have the right to revoke the suspended portion of the sentence in the event the defendant in that case should be guilty of any violation of the laws of the State, and that this could be done in vacation or term time.
The contention is therefore made on behalf of the appellee that the defendant in that case had notice from the terms of the judgment that the suspended portion of the sentence could be revoked at any time upon his becoming guilty of a violation of the criminal laws. But, the precise question here involved is how, and upon what notice, and at what sort of a hearing, the issue should be determined as to whether or not the defendant had been guilty of any misbehaviour or violation of the law subsequent to the suspension of his sentence.
It was conceded upon the hearing of the petition for writ of habeas corpus that the revocation of the suspension of sentence, to the extent hereinbefore mentioned, took place in the hospital at Meridian, where the circuit judge was confined as a patient, upon the ex parte application of the sheriff and county attorney, and which was concurred in by the district attorney, and at a time when the appellant was confined in jail at Waynesboro on pending charges for violations of the law. And, it is therefore further conceded that there was no public hearing on the application of the officers for a revocation of the suspended sentence, and that the hearing at the hospital was without any notice to appellant.
However, at the habeas corpus hearing the respondent therein made proof that the petitioner in the case had in fact plead guilty to selling whiskey, to an assault, and some other misdemeanor subsequent to the suspension of his sentence in July 1948. These violations of the law were shown to be disclosed by the judgments entered in each case, without any appeal therefrom. But, at the close of the habeas corpus hearing the trial judge did not revoke anew the suspended sentence on the proof adduced in open court but dismissed the petition for habeas corpus in reliance upon the revocation of the sentence made at Meridian on September 5, 1949, in the absence of the defendant and without notice to him. The effect of the dismissal of the petition for habeas corpus was to hold that the defendant was not being illegally confined in jail by the sheriff, as alleged in his petition, but that his confinement therein was lawful by reason of the prior revocation of his suspended sentence.
It is conceded on this appeal that there is no prior decision of this Court which expressly decides the exact question here involved,--as to notice and a public hearing. But Section 2543, Code of 1942, provides that: 'Whenever any court granting a suspended sentence, * * * based on conditions which the offender has violated or failed to observe, shall be convinced by proper showing, of such violation of sentence * * * the judge of the court granting such suspension of sentence * * * shall be authorized to annul and vacate such suspended sentence * * *.' The statute also authorizes this to be done either in vacation or in court time. The constitutionality of this statute was upheld in Gabriel v. Brame, Sheriff, 200 Miss. 767, 28 So.2d 581.
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...State ex rel. O'Connor v. Wolfer, 53 Minn. 135, 138--140, 54 N.W. 1065, 19 L.R.A. 783 (conditional pardon). Mason v. Cochran, 209 Miss. 163, 169--170, 46 So.2d 106 (suspended sentence). Ex parte Lucero, 23 N.M. 433, 436--439, 168 P. 713, L.R.A.1918C, 549 (suspended sentence). State v. Phill......
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