State v. Hilton

• Decision Date: 11 November 1909
• Court: North Carolina Supreme Court
• Parties: STATE. v. HILTON.

65 S.E. 1011

151 N.C. 687

STATE.

v.HILTON.

Supreme Court of North Carolina.

Nov. 11, 1909.

1. Criminal Law (§ 982^*)—Suspension of Sentence.

The power of a court to suspend judgment temporarily on conviction for some special purpose, or for some determinate and reasonable time, was recognized at common law, and ordinarily obtains at the present day in courts of general jurisdiction, holding terms at stated periods, the power having been exercised formerly only to allow accused to move for a new trial or to take other steps in the orderly procedure of the case, with a view to ameliorate his condition, as by giving him time to show that he was entitled to the benefit of clergy, that the rigors of the sentence had been modified by Parliament, or by affording him opportunity to apply for pardon.

[Ed. Note.—For other cases, see Criminal Law, Dec. Dig. § 982.]*

2. Criminal Law (§ 982*)—Suspension of Sentence.

In modern practice the power will only be upheld when sanctioned by usage, and where accused's consent is expressly given, or implied from the fact that its evident purpose was to save him from a more grievous penalty permitted or required by the law, and the power to allow a suspension of judgment on payment of the costs, or other reasonable condition, or to continue the prayer for judgment from term to term to afford accused opportunity to pay the costs, or to make some compensation to the party injured, to be considered in the final sentence, or requiring hint to appear from term to term and for a reasonable period of time, and offer testimony to show good faith in some promise of reformation or continued obedience to the law, well established by usage, should not be readily extended to occasions which might result in unusual punishment or unusual methods of administering the criminal law, especially in view of Revisal 1908, §§ 1293, 1294, relating to the confession of judgment by an accused to secure fine and costs, and providing that, upon failure to pay, he may be arrested at any subsequent term, and held until discharged according to law.

[Ed. Note.—For other cases, see Criminal Law, Dec. Dig. § 982.*]

3. Criminal Law (§ 982*)—Discontinuance —Acts Constituting.

Where there were three indictments against accused for illegal sale of liquors, and a plea of guilty was entered in each, and accused was sentenced to pay a fine and costs in one case, and judgment was suspended upon payment of the costs in the second case, and in the third case the prayer for judgment was continued and accused required to give bond for appearance in court, from term to term, to show good behavior, and the fine and all costs were paid, and accused appeared from court to court, and having shown good behavior was discharged by order of the court, and the cause went off the docket, there was a discontinuance in substance, if not technically, and the court could not subsequently pronounce sentence under one of the indictments.

[Ed. Note.—For other cases, see Criminal Law, Dec. Dig. § 9S2.*]

Appeal from Superior Court, Guilford County; Long, Judge.

William Hilton was convicted of illegally retailing intoxicating liquors, and appeals. Reversed.

Appeal from a sentence imposed by his honor, Judge Long, at June criminal term, 1909, of superior court of Guilford county, in a cause where there had been a plea of guilty entered by defendant at December term, 1907; said cause having gone off docket at ——term, 1908, and restored by order of his honor at said June term, 1909, for the purpose of imposing sentence. The court adjudged that defendant be imprisoned in the common jail of Guilford county for a period of six months and assigned to work on the roads of Guilford county during the time, and defendant excepted and appealed.

The pertinent facts are set forth in a case on appeal tendered in apt time by defendant's counsel, and agreed to by the solicitor, as follows:

"This is a case which was heard at the December term, 1907. The record (Minute Docket No. 15, page 227) in the clerk's office of Guilford county is as follows, viz.:

" 'State v. Wm. Hilton, December Term, 1907.

" 'No. 128. Indictment retailing. Defendant comes into court and pleads guilty of retailing as charged in the bill of indictment. Upon motion of the solicitor the prayer forjudgment is continued upon the payment of the costs of this action. Defendant to give bond of $100.00 for appearance at court from term to term and show good behavior.

" 'State v. Wm. Hilton, December Term, 1907.

" 'No. 109. Indictment retailing. Defendant comes into court and pleads guilty of retailing as charged in the bill of indictment. Upon motion of the solicitor the judgment of the court is suspended upon the payment of the costs of this action.

" 'State v. Wm. Hilton, December Term, 1907.

" 'No. 129. Indictment retailing. Defendant comes into court and pleads guilty of retailing as charged in the bill of indictment. Motion of the solicitor for judgment. It is adjudged by the court that the defendant pay a fine of $25.00 and the costs of this action.'

"The defendant gave the bond of $100 as required in No. 128 above, and made his appearance at court from term to term, and showed his good behavior, and was discharged by the court at —term, 1908, and the case went off of the docket. At the June term, 1909, there were two indictments pending against defendant for retailing; the docket numbers being 24 and 123. The bill of indictment No. 24 was found at September term, 1908, and the indictment 123 was found at June term, 1909. The defendant was called for trial in No. 24, and answered. The case was heard. The jury returned a verdict of 'not guilty.' During the trial, and upon cross-examination of the defendant by the solicitor, it developed that the defendant had been charged with retailing at December term, 1907. As soon as his honor had charged the jury in 24, the case that was then being heard, and, before they returned their verdict, he ordered the clerk to examine the records for the purpose of ascertaining whether or not the records showed that there were any suspended judgments against this defendant. The clerk found the record of December term, 1907, above set out, and so informed his honor, whereupon his honor, without any motion by the solicitor, ordered the defendant into custody, and ordered the clerk to place upon the docket at once the two cases of December term, 1907, viz., 128 and 129, being 147 and 148, after being placed on the docket of June term, 1909, by his honor's order. After this was done, the jury in No. 24 returned and announced their verdict of 'not guilty.' The solicitor called No. 123, and announced his readiness for trial. The defendant answered and announced his readiness for trial. His honor, of his own motion, sentenced the defendant to imprisonment for six months, to be assigned to work on the public roads of Guilford in No. 147, which was case No. 128 of December term, 1907, brought forward only a few minutes before by the clerk upon order of his honor. The defendant through his counsel at the time his honor pronounced this sentence asked for the privi lege of showing to his honor under what circumstances the plea was entered at December term, 1907. The attorneys for the defendant stated to his honor that at that time it was impossible to hear the case of the defendant on bond because of the number of jail cases; that the defendant was under bond; that the defendant had been present in court for several days with a number of witnesses and to return to another term of court with his witnesses would cause such loss of time and money; that as a matter of economy he entered his pleas of guilty upon the agreement of the then solicitor, who was familiar with all the facts, and with the approval of the trial judge; that, upon entering the plea of guilty, a fine should be imposed in one case and judgment suspended in the other two upon payment of costs. The defendant asked the privilege of showing the character of the witnesses upon whose testimony the bills were found, and of showing all the facts and circumstances that caused the trial judge at December term, 1907, to enter the judgments as found, and all the facts and circumstances that appealed to the judge hearing the cases at December term, 1907, all of which his honor refused to hear or consider. The defendant then insisted that he be tried in case No. 123, the case sent to the present term of the court by the municipal court on appeal, and in which the solicitor had announced his readiness to try; the defendant contending and insisting before his honor that he was innocent, and that he confidently expected a verdict of acquittal in the case, if the jury would be permitted to hear the testimony. His honor would not try the case, but continued the same of his own motion, and ordered the clerk to place a capias in the hands of the sheriff for service as soon as the defendant had served his sentence in 147, old number at December term, 1907, 128. The defendant gave notice of appeal from the judgment rendered, whereupon his honor sent for a stenographer, and had the following entries made, viz.:

" 'State of North Carolina, Guilford County.

" 'In the Superior Court, June Term, 1909.

'"State v. Wm. Hilton.

" 'No. 147. This is a case which was tried at the December term, 1907, wherein the defendant plead guilty to the charge of retailing spirits without license. Prayer for judgment was continued in that case. The case went off the docket. At this term of court an indictment was pending against the defendant in No. 24 for retailing, the indictment having been found at some previous term in No. 24. A jury trial was had and the jury returned a verdict of "not guilty." '

"The defendant also stands indicted on the docket at this term in case No. 123, which appears to the court to be a case brought here by an appeal by the defendant from tharecorder's court, where recently he was convicted for retailing before the recorder...