State v. Crook

• Decision Date: 11 December 1894
• Citation: 115 N.C. 760,20 S.E. 513
• Parties: STATE. v. CROOK.
• Court: North Carolina Supreme Court

20 S.E. 513

115 N.C. 760

STATE.

v.CROOK.

Supreme Court of North Carolina.

Dec. 11, 1894.

Criminal Law—Suspension of Sentence. Where sentence is suspended against two convicted persons on the condition that one of them pay ah the costs of the case, and such person pays but part of the costs, the presiding judge may impose the suspended sentence, though such defendant had already been committed to jail for default of payment of such costs.

Appeal from superior court, Union county; Bynum, Judge.

Leroy Crook and another were convicted for making an affray with deadly weapons. Judgment was suspended against defendant Crook on condition that he pay all the costs in the case. Defendant having paid but part of the costs, the presiding judge ordered him to be committed to the county jail for six months. From this judgment, defendant appeals. Affirmed.

The defendant Crook pleaded guilty, and the defendant Gurley stated in open court that he would no longer contend against the state, and upon the motion of the solicitor the court made the following order: "Judgment suspended against both defendants upon the payment by the defendant Crook of all the costs of the case, to be taxed by the clerk of this court." The defendant Crook was given time to pay thecosts, and was required to give bond for his personal appearance at the next term of this court; said bond being renewed from time to time in order that the defendant Crook could the more easily pay said costs, which was a very large amount. The defendant so appeared at the said term of said superior court, and so renewed his bond from time to time until August term, 1894, —the present term of said court, —begun and held on the 20th day of August, 1894, to and including the 1st day of September, 1894, when the defendant Crook came into court on the first day of said term, it being the 20th day of the said month of August, 1894, and stated to the court that he had paid part of said bill of cost, —some $60 or $70; none of the court costs or state's witnesses, except solicitor's fee of $8, which was paid by defendant Crook. Thereupon, his honor, R. W. Winston, judge presiding, upon motion of the solicitor, placed the defendant Leroy Crook in the custody of the sheriff of the said county of Union. That the sheriff committed the defendant Crook to the common jail of said county, where the said defendant remained until Saturday, the 1st day of September, 1894, the same being the last day of said two-weeks term of said superior court, and the 12th day that said Crook had been in said county jail, when his honor, R. W. Winston, just before court adjourned for the term, had the defendant Crook brought into court, and adjudged that he be confined in the common jail of said county for six months, with leave to the commissioners to hire him out, he not having paid or arranged the said costs. To which judgment the defendant Crook excepts, and appeals to the supreme court, and assigns as error the ruling of his honor and the judgment of said court: (1) That the former order or judgment of the court, made in February, 1892, that the defendant Crook pay all the costs in this case, including the costs of his codefendant, Gurley, was a judgment of the court against the defendant Crook; and the judgment having been performed in part, to wit, a payment of a part of the costs, it was no longer in the power of the court to change said judgment, and imprison the defendant. (2) That the defendant having stated to the court that he was unable to pay the balance of said bill of costs, and the court having ordered the defendant into the custody of the sheriff, said order was, by implication, a judgment of the court, and an order to the sheriff to imprison the defendant until the costs were paid, or he be discharged according to law; and the defendant Crook, having been in jail 12 days of the 20 or 30 days necessary to remain in jail to be discharged under the insolvent debtor's law, had thereby executed a part of this judgment, and it was no longer In the power of the court to change the judgment in a manner to make It more harsh. That the court committed error as pointed out In Nos. 1 and 2, as above. Defendant Leroy Crook prayed an appeal to the supreme court

F. H. Whitaker, Jr., for appellant.

The Attorney General, for the State.

AVERY, J. The practice of making an order, where defendants are convicted or submit on a criminal charge, that the judgment be suspended upon the payment of the costs, is one that seems to be somewhat peculiar to our own courts; but it must be admitted that its adoption has proved very salutary, both In bringing about the reformation of petty offenders, and in the suppression, especially of certain classes, of offenses. The exercise of this discretionary power has not heretofore been questioned, and the beneficial effects of its judicious use have been made so manifest as to commend it both to the judges and the people. We search in vain for direct authority, emanating from the courts of other states, to aid us in determining the precise meaning of such orders, because It has not been the practice to make them elsewhere In the same way. The order is, in effect, a final judgment for the whole or a certain proportion of the costs Incurred in the prosecution of the charge, but a suspension of the sentence of fine or imprisonment, either generally and indefinitely, or till some specified term of the court. We cannot understand how the rights of a defendant are infringed, or his interests prejudiced, by allowing him to escape for the present upon a partial judgment for the costs, and suspending the motion or prayer for further punishment, instead of subjecting him immediately to such fine or imprisonment as his own criminal conduct has made him liable to suffer. In civil causes this court has approved the practice of granting a writ of restitution, on appeal, to one wrongfully dispossessed of land under a justice's Judgment, and by the same order retaining the case till witnesses could be summoned, and the damages growing out of the wrongful ejection assessed. Lane v. Morton, 81 N. C. 38. We might adduce other instances in which one branch of a controversy has been finally disposed of while other matters in dispute have been retained to await further investigation preliminary to judgment, but it is needless to do so.

It is familiar learning that a court may suspend the judgment over a criminal in toto until another term, but has no power to impose two sentences for a single offense, as by pronouncing judgment under one count in an indictment, and reserving the right to punish under another count at a subsequent term, or by imposing a fine, and at a later term superadding imprisonment State v. Ray, 50 Iowa, 520; State v. Miller, 6 Baxt. 513; State v. Watson, 95 Mo. 411, 8 S. W. 383; People v. Felix, 45 Cal. 103; Thurman v. State, 54 Ark. 120, 15 S. W. 84; Whart Cr. Pl. & Pr. § 913; Whitney v. State, 6 Lea, 247. The judgments, orders, and decrees of a court, as a general rule, are under its control and subject to modification during the term at which they are entered; but where a defendant has undergone a part of the punishment the sentence cannot be revoked, and another, except in diminution or mitigation, substituted for it, because he would be twice placed in jeopardy, and twice subjected to punishment, for the same offense. State v. Warren, 92 N. C. 825; Ex parte Lange, 18 Wall. 103. The punishment which the courts are prohibited...