McLemore v. State
| Decision Date | 11 June 1934 |
| Docket Number | 31275 |
| Citation | 155 So. 415,170 Miss. 641 |
| Court | Mississippi Supreme Court |
| Parties | MCLEMORE v. STATE |
Suggestion Of Error Overruled September 11, 1934.
APPEAL from circuit court of Forrest county HON. W. J. PACK, Judge.
LeRoy McLemore was convicted of the unlawful possession of intoxicating liquor, and he appeals from an order revoking and annulling a suspended sentence theretofore entered against him. Affirmed.
Affirmed.
Hearst & Pittman and H. W. Pittman, all of Hattiesburg, for appellant.
The courts are not concerned about the appellant's good behavior morally or religiously, nor as a good husband, etc. The court is only concerned with his not violating the law and we submit that so long as the appellant did not violate the law the suspension of his sentence could not be revoked, and, in fact, the court would have no jurisdiction to revoke it until the state has shown that he has violated the law.
The evidence in the case at bar is not sufficient against the appellant.
Roy Goodson v. State, decided April 9, 1934.
We have the right to ask the court to take the appellant's testimony as true since it is nowhere contradicted.
Walters v. State, 122 So. 189.
W. D. Conn, Jr., Assistant Attorney-General, for the state.
Counsel, in the brief now on file in this case, laid down the proposition that it is necessary to prove a violation of the law, beyond a reasonable doubt and to a moral certainty, before the court would be authorized to revoke a suspended sentence. The statute only requires the court to, be "convinced by proper showing" that the terms of the suspension have been violated or have not been observed.
This is an appeal from the circuit court of Forrest county from a judgment of the court revoking and annulling a suspended sentence theretofore entered against appellant upon conviction of the unlawful possession of intoxicating liquor, appellant being required by the order appealed from to serve out that part of the sentence suspended. From the order of revocation, the appellant prosecutes this appeal.
At the November, 1933, term of the circuit court appellant was convicted of the crime of unlawfully possessing intoxicating liquor and sentenced to pay a fine of three hundred dollars and costs, and to serve a term of ninety days in jail. The court suspended one-half of the fine and all the jail sentence "during the good behavior of defendant." The authority of the court for that action is contained in section 1298, Code 1930, which provides that the circuit courts, in misdemeanor cases, are authorized to suspend sentences and execution of sentences, or any part thereof, "on such terms as may be imposed by the judge of the court."
At the January term, 1934, of the court appellant was cited, under section 1300, Code 1930, to appear before the court and show cause, if any he could, why he should not be required to serve the jail sentence and pay the balance of the fine. The pertinent part of that section is that whenever a suspended sentence is granted, based upon conditions which the offender has violated or failed to observe, the judge of the court granting such suspension in vacation or in term time shall have authority to annul and vacate such suspended sentence if "convinced by proper showing" of such violation.
The evidence tended to show that after the conviction and sentence, appel...
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Ex parte Boyd
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State v. Robinson
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