State v. Brooks

• Decision Date: 09 June 1937
• Docket Number: No. 74.,74.
• Citation: 211 N.C. 702,191 s.e. 749
• Court: North Carolina Supreme Court
• Parties: STATE. v. BROOKS.

191 s.e. 749

211 N.C. 702

STATE.

v.BROOKS.

No. 74.

Supreme Court of North Carolina.

June 9, 1937.

G. M. Brooks was indicted for abandonment and nonsupport of his wife and children and after entry of a judgment imposing sentence on his plea of nolo contendere, he brings certiorari as a substitute for appeal or in nature of writ of error.

Error, and judgment stricken oat.

Petition by G. M. Brooks for certiorari as substitute for appeal, or in the nature of a writ of error (State v. Moore, 210 N. C. 686, 188 S.E. 421), filed originally in the Supreme Court, and granted at the spring term, 1937.

A. A. F. Seawell, Atty. Gen., and Harry M. McMullan, Asst. Atty. Gen., for the State.

T. T. Thome, C. C. Pierce, and J. L. Simmons, all of Rocky Mount, for defendant.

STACY, Chief Justice.

The petitioner entered a plea of nolo contendere at the March term, 1932,-Nash superior court, to an indictment charging him with abandonment and nonsupport of his wife and children. C.S. § 4447, as amended by Pub.Laws 1925, c. 290; State v. Bell, 184 N.C. 701, 115 S.E. 190. An order was entered requiring the defendant to pay into the clerk's office for the support and maintenance of his children, certain monthly stipulated amounts which were later increased, and subsequently reduced to 'the original sums. C.S. § 4449. Default having been made in said payments, judgment was entered at the December term, 1936, upon the defendant's original plea of nolo contendere, without his knowledge or presence, assigning the defendant to two years on the roads, "sentence to begin on the 1st day of the first January term, 1937, Nash superior court, unless it shall appear that the defendant has paid into the office of the clerk of thesuperior court of Nash county all matured installments under the orders entered herein and has likewise filed with said clerk a bond in the penal sum of $1,000, guaranteeing the payment of future installments as they mature. If said conditions are not complied with, then and in that event the clerk of the superior court of Nash county is ordered and directed to issue capias and commitment and the solicitor of the district is directed to take action to have the defendant extradicted to the end that the sentence herein imposed may be put into effect."

The validity of this judgment, attempting to impose corporal punishment upon the defendant, unless avoided by compliance with the conditions annexed, is challenged on two grounds: First, because entered without the knowledge...