State v. Hardin

• Decision Date: 02 June 1922
• Docket Number: 273.
• Citation: 112 S.E. 593,183 N.C. 815
• Parties: STATE v. HARDIN.
• Court: North Carolina Supreme Court

112 S.E. 593

183 N.C. 815

STATE v. HARDIN.

No. 273.

Supreme Court of North Carolina

June 2, 1922

Appeal from Superior Court, Robeson County; Kerr, Judge.

Nasby Hardin was convicted of assault with a deadly weapon, and given a suspended judgment, and on motion was sentenced to imprisonment, from which he excepts and appeals. Remanded.

Clark C.J., dissenting.

Where a judgment was suspended during good behavior, the fact that defendant paid counsel's fee for a private prosecutor where the payment did not constitute a part of the judgment against him, does not prevent a suspended judgment from being enforced on the ground that defendant may not be punished twice for the same offense. July criminal term preceding defendant was convicted or submitted on an indictment charging him and three others with the crime of assault with intent to kill one Burnett. At said July term the following entries appeared upon the record:

"With the consent of the solicitor, all the defendants, including the defendant Hardin, submitted to the crime of assault with a deadly weapon. Whereupon prayer for judgment was continued upon the payment of the cost, the defendant agreeing to pay $200 to the private prosecutors to reimburse them for counsel fees paid out in prosecution of this cause, which has been paid, together with the cost."

And thereupon order was made in the cause as follows:

"Prayer for judgment continued by consent upon payment of the cost; defendant to appear at each criminal term of this court for two years and show that they have been of good behavior and not violated the law in any respect."

The case on appeal then proceeds with the further statement that:

"On Friday preceeding the convening of the November criminal term, 1921, of the Robeson superior court, the defendant was tried before David H. Fuller, recorder of the Lumberton district, upon two indictments, one charging him with having more intoxicating liquors in his possession than is allowed by law, and another indictment charging him with having sold intoxicating liquors contrary to law. The defendant pleaded not guilty to both these indictments, and the same was tried before a jury, and the defendant was acquitted on both charges; thereafter, to wit, on Monday, the 1st day of the November criminal term, 1921, of the Robeson superior court, the solicitor prayed judgment against the defendant upon the indictment tried at the July criminal term, 1921, of the Robeson superior court, in which prayer for judgment was continued as set out in the record. Upon this prayer for judgment by the solicitor, and upon statements of the sheriff and deputy sheriff, upon which the facts stated in the following judgment were found, the court entered the following judgment. 'At the July term of this court, 1921, the defendant Nasby Hardin, was convicted by the jury of an assault with intent to kill Lacy Burnett. Prayer for judgment was continued for two years by consent and upon payment of cost. At this term of the court the defendant was called to appear and show cause that he had been of good behavior. It appeared to the court and the court finds as a fact that the defendant had manufactured and had in his possession more than 150 gallons of wine; and that the defendant had bought grapes in Bladen county; that persons had drunken of the said wine and numerous persons had been seen going to and from the home of the said Nasby Hardin intoxicated. The said Nasby Hardin was indicted upon the attached warrant and tried by Recorder D. H. Fuller and jury; found not guilty and these are the same charges in above findings. Thereupon the court, on motion of the solicitor, S. B. McLean, of this district, sentenced the said Nasby Hardin to be confined in the county jail of Robeson county for a term of twelve months to be worked on the public roads of said county."

Defendant excepted and appealed.

Britt & Britt and McLean, Varser, McLean & Stacy, all of Lumberton, for appellant.

J. S. Manning, Atty. Gen., and Frank Nash, Asst. Atty. Gen., for the State.

HOKE J.

The power of a court having jurisdiction to suspend judgment on conviction in criminal cases for determinate periods, and for a reasonable length of time, is fully recognized in this jurisdiction. State v. Hoggard, 180 N.C. 678, 103 S.E. 891; State v. Greer, 173 N.C. 759, 92 S.E. 147; State v. Tripp, 168 N.C. 150, 83 S.E. 630; State v. Everitt, 164 N.C. 399, 79 S.E. 274, 47 L. R. A. (N. S.) 848; State v. Crook, 115 N.C. 760, 20 S.E. 513, 29 L. R. A. 260. And these and other cases on the subject hold also that the suspended judgment may be on the condition of good behavior of defendant for like determinate and reasonable periods of time, and that, on inquiry duly instituted, the court having jurisdiction and hearing the matter may, in its sound discretion, determine for itself whether the conditions have been violated (State v. Greer, supra; State v. Tripp; State v. Everitt, supra); a position that is modified, however, where it is properly made to appear that a defendant has been acquitted by the jury or other competent tribunal having jurisdiction of the criminal offense which is the sole basis of the proceedings. As to that fact and to that extent the court or judge hearing the matter of the suspended judgment should be concluded.

The authorities are to the effect further that, where a judgment has been suspended on condition of payment of cost and good behavior, etc., the term "good behavior" by correct interpretation means conduct that is authorized by law, and "bad behavior" such as the law will punish (In re Spenser, 22 Fed. Cas. 921, 922, No. 13,234) and that, in order to a valid sentence on such suspended judgment, it must be properly established by pertinent testimony that the conditions have been broken within the meaning and purport of the above principle (State v. Hilton, 151 N.C. 687, 65 S.E. 1011).

Applying the doctrine as set forth and approved by these authorities, the sentence of the court imposing judgment on the defendant cannot be upheld, for it appears neither by evidence nor finding of the court that there has been any breach of the criminal law of the state on the part of the defendant since said judgment was suspended. True, his honor finds that defendant had manufactured and had in his possession as much as 150 gallons of wine. That defendant had bought grapes in Bladen county, and persons had been seen coming from his place intoxicated. But the manufacture of wine from grapes is not prohibited by the laws of this state. C. S. § 3367. Nor is the possession of any quantity of wine an indictable offense unless held for purpose of sale. C. S. § 3379. And, though the section last cited makes the possession of more than three gallons of wine prima facie evidence of guilt, it seems that neither the section nor the rule of proof prevails as to wines made of grapes grown on the premises of the holder. While the facts as found by his honor may permit, and perhaps justify, an inference of guilt, the ultimate fact of guilt has not been found by him, nor is it otherwise established; the only tribunal which has undertaken to make a finding on the question, to wit, the recorder's court, having found defendant not guilty of any criminal offense.

On the record, such action of the recorder's court may not be considered as controlling on the present hearing, from the fact that such court did not have jurisdiction of the offenses charged; the punishment on conviction being discretionary, and the jurisdiction of said recorder's court for offenses of this character being restricted to cases where the punishment may not exceed a fine of $200 or imprisonment for one year; but it no doubt afforded a reason for the hesitation of his honor in declaring the defendant guilty.

It is urged in support of the present judgment that, while the facts found by his honor may be only evidential as to a breach of the criminal laws of the state, they are sufficient of themselves to amount to a finding as to a violation of the federal regulations on this subject as contained in the Eighteenth Amendment and the Volstead Act (41 Stat. 305), passed by Congress with the view and purpose of making the amendment effective. Speaking in general terms, this Eighteenth Amendment prohibits within the territory of the United States the manufacture, sale, or transportation of intoxicating liquors for beverage purposes. And the Volstead Act, designed as stated to make this amendment effective, makes it a criminal offense to manufacture such liquors for the purpose indicated. The manufacture of intoxicating liquors for other and certain specified purposes is not condemned either by the prohibition amendment or the act of Congress, the statute, however, providing that, in order to a lawful manufacture, there must be a permit from the Revenue Department of the government. Even under the provisions of the federal law, therefore, the findings of his honor fail to declare the ultimate fact of defendant's guilt, in that it makes no reference to the purpose of defendant in manufacturing the 150 gallons of wine, nor is it declared whether defendant had or had not a valid permit for the purpose. Apart from this, we have held in two or more recent cases that the state courts are without power or jurisdiction to administer the provisions of the Volstead Act. State v. Barksdale, 181 N.C. 621, 107 S.E. 505; State v. Helms, 181 N.C. 566, 107 S.E. 228.

When the state court, therefore, suspended judgment on condition that the defendant should be on good behavior--that is should not break the law for two years--this, without more, should be construed as meaning the state law, the only law the court had jurisdiction to enforce; and, where it appears that the...