McInturff v. State
| Decision Date | 09 September 1960 |
| Citation | 338 S.W.2d 561,207 Tenn. 102,11 McCanless 102 |
| Parties | , 207 Tenn. 102 Lee McINTURFF, Plaintiff In Error, v. STATE, Defendant in Error. |
| Court | Tennessee Supreme Court |
Jack Vaughan, Johnson City, for plaintiff in error.
Thomas E. Fox, Asst. Atty. Gen., for the State.
Before stating the question for solution, it is necessary to state the substance of this brief record. Lee McInturff, plaintiff in error hereinafter referred to as defendant, was convicted for possessing whisky and was ordered to pay a fine of $150 and costs. Thereupon he confessed judgment and secured his fine and costs with good sureties as provided by T.C.A. § 40-3202. Subsequently he moved for a new trial, which motion was overruled, an appeal was prayed and granted to the Supreme Court and an appearance bond given as provided in misdemeanor cases by T.C.A. § 40-3408.
Nothing further was done in regard to said appeal but at the subsequent term of the trial court an order was entered requiring his arrest and detention until he could pay or secure the aforesaid fine and costs and he was re-arrested and placed in jail until he did secure same. The court disallowed the motion to set aside said order, from which action the present appeal derives.
In behalf of the defendant it is insisted that the action of the trial judge was erroneous, as in violation of the rule laid down in two cases. In Poteete v. State, 68 Tenn. 261, and Hamilton v. State, 68 Tenn. 355, it is Held that if defendant gives the required sureties, he shall not be imprisoned, and the sureties stand in the place of personal confinement as a means of enforcing the collection of the fine and costs. Where a bond has been given for the fine and costs, and the defendant has been released, he cannot be re-arrested and remanded to prison, at a subsequent term, upon the failure of the sheriff to make the money out of him and the sureties. The only remedy is on the bond.
To the contrary, it is insisted in behalf of the State that this situation is controlled by Helton v. State, 195 Tenn. 491, 260 S.W.2d 260, and Edgemon v. State, 195 Tenn. 496, 260 S.W.2d 262. That is, it is insisted that the perfecting of the appeal voided the order of the trial judge releasing the defendant when he provided bond with two sureties and confessed judgment for the fine and costs.
We think the insistence in behalf of the defendant is correct. The two cases relied on by the State relate to T.C.A. §§ 40-2901 and 2902 which relate to suspension of sentence and/or parole. The power granted the trial judge by that section of the Code which is Ch. 76, Acts of 1931, as later modified, makes it purely a matter of discretion with the trial judge as to whether or not he will grant a suspension of sentence or parole. In Hooper v. State, 201 Tenn. 156, 161, 297 S.W.2d 78, 81, it is said:
.
Accordingly, it is Held in Stanley v. State, 171 Tenn. 406, 104 S.W.2d 819, that the Act does not authorize an application for parole or suspension of sentence pending an appeal of the case and that the trial court is correct in refusing to grant an appeal until after an application for clemency has been withdrawn. In the Helton case supra it is Held that the power of the court to suspend sentence is limited to those cases in which a defendant does not exercise the right of appeal.
To the contrary, T.C.A. § 40-3202 provides:
'In cases where a fine is assessed, the court shall allow the defendant to confess judgment for the fine and costs, with good sureties.'
In Halfacre v. State, 112 Tenn. 609, 79 S.W. 132, it is Held that this section is mandatory and that the prisoner, in a case to which the statute applies, has the right to bring with him proper sureties and upon the confession of judgment by himself and sureties before the court for...
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...can be no appeal from a plea of guilty"); Ray v. State, 224 Tenn. 164, 167-71, 451 S.W.2d 854, 855-56 (1970); McInturff v. State, 207 Tenn. 102, 106, 338 S.W.2d 561, 563 (1960); Patterson v. State, 684 S.W.2d 110, 111 (Tenn.Crim.App.1984); Roe v. State, 584 S.W.2d 257, 259 (Tenn.Crim.App.),......
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...Criminal Procedure, an accused, as a general rule, could not appeal following the entry of a guilty plea. In McInturff v. State[, 207 Tenn. 102, 106, 338 S.W.2d 561, 563 (1960)], our Supreme Court said:[I]t is axiomatic that the defendant, having confessed judgment for the fine and costs, h......
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