Smith v. State, 38179

• Decision Date: 12 November 1951
• Docket Number: No. 38179,38179
• Citation: 212 Miss. 497,54 So.2d 739
• Court: Mississippi Supreme Court
• Parties: SMITH v. STATE.

Page 739

54 So.2d 739

212 Miss. 497

SMITH v. STATE.

No. 38179.

Supreme Court of Mississippi, Division B.

Nov. 12, 1951.

R. C. Russell, Magee, Dent & Dent, Collins, for appellant.

J. P. Coleman, Atty. Gen., by Geo. H. Ethridge, Asst. Atty. Gen., for appellee.

ETHRIDGE, Commissioner.

On March 21, 1939, appellant, Vardaman Smith, in the Circuit Court of Simpson County, Mississippi, pleaded guilty to the charges in three indictments of unlawful possession of intoxicating liquor, and received respective penalties of a $500 fine, and two ninety-day jail sentences. The fine and sentences were 'suspended pending good behavior of the defendant. * * * Said sentence to be enforced at the pleasure of the court.' The record reflects that the Hon. Homer Currie was at that time the district attorney for the State of Mississippi in that, the thirteenth judicial district and for Simpson County. On March 14, 1951, the present district attorney for that district, Hon. Joe A. McFarland, Jr., filed a petition with the Circuit Court of Simpson County. It pointed out to the court that appellant had in 1939 been convicted and sentenced, and that execution of his sentences had been suspended, dependent upon appellant's good behavior. It charged that appellant was engaged in the illegal sale and possession of liquor and that he operated two 'joints' in which such activities took place and at which various crimes of violence had occurred recently. The petitioner requested that the suspension of execution of these sentences be revoked by the court. A hearing was had in March, 1951, before the circuit judge of that district, the Hon. Homer Currie. The court found that appellant had violated the conditions of the suspension of execution of his sentences, and had been guilty of bad conduct and misbehavior, and therefore, the court revoked in part the suspended sentences. From that judgment Vardaman Smith appeals.

Appellant first argues that the circuit court had no power to revoke the suspension of execution of his sentences and to require him to meet the penalties thereof, after the lapse of twelve years from the date of the judgment imposing the penalties and suspending them. Appellant says that the court in 1951 had lost jurisdiction and had no power to amend the 1939 judgment, because the period of suspension could not exceed the maximum period for which accused could be imprisoned, or in the alternative, because the 1939 judgment could not be enforced after seven years from the date of its rendition, under Miss.Code 1942, Sec. 733. Assuming but not deciding that Sec. 733 is applicable to a criminal judgment, we do not think that the court had lost jurisdiction and control over the conditions established in the 1939 judgment. The duration of the suspension period is determined by Code Sections 2541-2543. Sec. 2541 states: 'The circuit courts * * * in misdemeanor cases, are hereby authorized to suspend a sentence, and to suspend the execution of a sentence, or any part thereof, on such terms as may be imposed by the judge of the court.'

Section 2543 provides that whenever an offender has violated the conditions of a suspended sentence, the court is 'authorized to annul and vacate such suspended sentence * * * and such convicted offender shall thereafter be subject to arrest and court sentence service, as if no suspended sentence * * * had been granted, and for the full term of the original sentence that has not been served'. See 24 C.J.S., Criminal Law, Sec. 1618, pages 185-195, 187-190. Under this type of statute it is usually said that the court may enforce the judgment and revoke the suspension of execution 'at any subsequent time, even after the original period of the sentence has passed.' 15 Am.Jur., Criminal Law, Secs. 496, 492-497. This was expressly held in the recent case of Miles v. Monaghan, Sheriff, Miss.1951, 51 So.2d 212, following the analogy in Crump v. Trapp, Sheriff, Miss.1948, 36 So.2d 459. The statute places no time limitation upon the power of the court to revoke a suspended sentence.

Prior to the hearing of charges of violation by appellant of conditions in the 1939 judgment, appellant challenged the qualification in this matter of the presiding circuit judge, and moved 'that he recuse himself from the further trial in this cause for the reason that he was the duly elected, acting and qualified District Attorney of this court at the time when these pleas and judgments were rendered that are now undertaking (sic) to be invoked and enforced here against this defendant. And for that reason the defendant says that this Judge would be required to pass upon the judgments to which he was a party to, or entering and obtaining.'

This motion was based upon the provisions of Miss. Code of 1942, Sec. 1651, which provides: 'The judge of a court shall not preside on the trial of any cause where the parties, or either of them, shall be connected with him by affinity or consanguinity, or where he may be interested in the same, or wherein he may have been of counsel, except by the consent of the judge and of the parties.'

In overruling this motion the presiding judge stated that he was in fact the district attorney of that judicial district and Simpson County at the time the 1939 judgments and sentences were rendered against appellant. He said: 'The District Attorney represented the State and prosecuted all cases, but no issue was joined by the defendant with the State of Mississippi in these cases, which would have enabled the District Attorney to participate in any way except in his work with the grand jury that brought about the indictments as the law required. And pleas of guilty were entered by the defendant in each instance. The District Attorney had no opportunity to enter into the...