State v. Everett

• Decision Date: 10 September 1913
• Citation: 79 S.E. 274,164 N.C. 399
• Parties: STATE v. EVERETT.
• Court: North Carolina Supreme Court

79 S.E. 274

164 N.C. 399

STATE v. EVERETT.

Supreme Court of North Carolina

September 10, 1913

Appeal from Superior Court, Edgecombe County; Cline, Judge.

D. E Everett pleaded guilty to the unlawful sale of intoxicating liquor, and sentence was suspended by the court during good behavior. At a subsequent term the court, having satisfied itself that the defendant had again engaged in selling intoxicating liquor, imposed sentence upon the former plea of guilty, and the defendant appeals. Affirmed.

Where sentence upon a defendant is suspended upon certain conditions, the defendant is not entitled to a jury trial to determine whether he has violated the conditions.

The defendant was indicted in three cases for unlawfully selling liquor, and pleaded guilty to each indictment at September term, 1911. Judgment was prayed by the solicitor, and the court adjudged that defendant pay a fine of $150 and the costs in the first case, suspended judgment on payment of the costs in the second, and entered the following order in the third: "It is ordered that judgment be suspended on the payment of costs, and further that the defendant enter into a bond in the sum of $200 for his appearance at each criminal term of this court for the next two years and show that he has demeaned himself as a good and law-abiding citizen." The defendant appeared from term to term of the court, and at March term, 1913, on the suggestion of the solicitor that the defendant had violated the terms imposed by the court for the suspension of judgment at September, 1911, by unlawfully selling liquor, the court, in the presence of defendant heard testimony from both sides upon the accusation, and, on due consideration thereof, found as a fact that the defendant had engaged in the unlawful sale of liquor, in violation of the condition upon which the judgment of the court had been suspended. The court thereupon, and for the same cause adjudged, in said case, that defendant be imprisoned in the county jail for the term of nine months, with directions that he be assigned by the county commissioners to work on the public roads, and from this judgment he appealed.

Jno. L. Bridgers, of Tarboro, for appellant.

Attorney General Bickett and T. H. Calvert, of Raleigh, for the State.

WALKER J. (after stating the facts as above).

The practice of suspending judgment upon convictions in criminal cases and upon reasonable terms has so long prevailed in our courts that we would be loath to disturb it, except for the most convincing reason, supported by the clearest authority showing its illegality. We are satisfied, after the most careful examination of the question, that no such reason can be presented, and that no such precedent can be found. Recent decisions of this court are strongly in favor of the power as existing in the court, when it is fairly and not unreasonably or oppressively exercised. In this case the learned and enlightened judge, who presided and imposed the sentence, proceeded with great caution after a final hearing of both sides, and we concur in his finding of fact and his conclusion that this was a proper case for the use of the power residing in him, in order to punish the defendant for a violation of the criminal law, which he had confessed in open court, and of which he had been adjudged guilty; he having shown himself no longer entitled to the clemency of the court.

Before discussing the general question as to the power of the court to suspend judgment upon terms and conditions imposed at the time, it will be well to notice the objections made by the learned counsel for the defendant in his brief and argument. As we understand, they are the following: (1) If the court can suspend the judgment, it may do so indefinitely. (2) The suspension was really, and in law, conditioned upon the payment of costs only, and, when the costs were paid, the power of the court to proceed further was terminated, for the condition annexed was no part of the punishment. (3) The conditional terms imposed render the judgment uncertain, as in the case of alternative judgments. (4) The court has punished the defendant for what he has done since the suspension of the judgment, and not for the original offense, and for which he has not been tried upon indictment and convicted by a jury. We do not think any of these objections are tenable. It would be useless for us, in this case, upon a suspension for only two years, to inquire what would be the legal effect of an indefinite suspension, as there has been no such exercise of the conceded power.

It must not be overlooked that the suspension of judgment, upon terms expressed therein, at September term, 1911, was entered with the defendant's implied assent at least; he being present and not objecting thereto. This court said in State v. Crook, 115 N.C. 760, 20 S.E. 513, 29 L. R. A. 260, that such an order is not prejudicial but favorable to a defendant, in that punishment is put off, with the chance of escaping it altogether, and it is presumed that he was present and assented thereto, if he did not ask for it as a measure of relief from impending punishment. The court also expressed some surprise at the suggestion that the rights of a defendant are infringed or his interests impaired by allowing him to escape for the present the toils of the law, by suspending immediate action and affording him an opportunity for reformation as a basis for permanent clemency, instead of requiring him at once to undergo the punishment of the law, for the offense of which he had been convicted. And we repeat that it is strange he should complain of the merciful consideration which the law thus extends to him.

The practice of suspending judgment upon terms prescribed has been sanctioned in our courts for a long time, and it seems to have been recognized in England, for in 4 Blackstone, 394 it is said that: "A reprieve (from reprendre, to take back) is the withdrawing of a sentence for an interval of time, whereby the execution is suspended. This may be, first, ex arbitrio judicis, either before or after judgment, as where the judge is not satisfied with the verdict, or the evidence is suspicious, or the indictment is insufficient, or he is doubtful whether the offense be within clergy, or sometimes, if it be a small felony, or any favorable circumstance appear in the criminal's character, in order to give room to apply to the crown for either an absolute or conditional pardon." And to the same effect we find the law thus stated in Chitty's Cr. Law, 75: "The more usual course is for a discretionary reprieve to proceed from the judge himself, who, from his acquaintance with all the circumstances of the trial, is most capable of judging when it is proper. The power of granting this respite belongs, of common right, to every tribunal which is invested with authority to award execution. And this power exists even in cases of high treason, though the judge should be very prudent in its exercise." "At common law every court invested with power to award execution in criminal cases has inherent power to suspend the sentence." Clark's Cr. Pro. 496. In Com. v. Dowdican's Bail, 115 Mass. 133, it was held to be proper and within the power of the court, after conviction in a criminal case, "when the court is satisfied that, by reason of extenuating circumstances, or of the pendency of a question of law in a like case before a higher court, or other sufficient cause, public justice does not require an immediate sentence, to order, with the consent of the defendant and of the attorney for the commonwealth, and upon such terms as the court in its discretion may impose, that the indictment be laid on file and this practice has been recognized by statute. *** Such an order is not equivalent to a final judgment, or to a nolle prosequi or discontinuance, by which the case is put out of court, but is a mere...