State v. Simmington

• Decision Date: 21 May 1952
• Docket Number: No. 649,649
• Citation: 235 N.C. 612,70 S.E.2d 842
• Court: North Carolina Supreme Court
• Parties: STATE, v. SIMMINGTON.

Page 842

70 S.E.2d 842

235 N.C. 612

STATE, v. SIMMINGTON.

No. 649

Supreme Court of North Carolina.

May 21, 1952

Harry McMullan, Atty. Gen., T. W. Bruton, Asst. Atty. Gen., and Charles G. Powell, Jr., of Staff, Raleigh, for the State.

Stanley & Caveness, Greensboro, for defendant appellant.

BARNHILL, Justice.

When the judge of the municipal-county court adjudged that defendant had breached the conditions upon which execution was suspended, his remedy, as now provided by G.S. § 15-200.1, was by appeal.

But he contends that his complaint is not directed to the order placing him in custody and hence this statute is not applicable. He moved to vacate the conditions imposed, and it is from the order denying this motion that he seeks relief. The only method available to him for seeking a review of that order was by petition for writ of certiorari. So he asserts.

We may concede the correctness of his position in this respect. Even then, the record leaves him in no position to challenge the correctness of the ruling of the court below.

A writ of certiorari as here used is an extraordinary remedial writ to correct errors of law. It issues from a superior court to an inferior court, and it lies only to review judicial or quasi-judicial action. Pue v. Hood, 222 N.C. 310, 22 S.E.2d 896, and cases cited. Hence the only function of the court below was to determine whether the judge of the municipal-county court had committed error in denying defendant's motion for a discharge on the grounds assigned in that court. The trial judge was without jurisdiction to hear new matter or consider an attack upon the conditions imposed on any grounds other than those set out in defendant's affidavit and motion.

In his affidavit and motion, the defendant asserts as grounds for his discharge that the judge, in suspending the judgment pronounced, did not follow the procedure prescribed when a prisoner is placed on probation, and that he was required to pay $60 on the day of his trial or 'go to jail, and was not free to exercise his own judgment in the matter.' So far as this record discloses, he did not assail the validity of the conditions on the ground that the judgment was in effect a sentence 'to pay damages or go to jail', and that his imprisonment thereunder will amount to imprisonment for debt. Hence the question he seeks to debate here was not properly before the court below and is not presented to us for decision.

A court has the inherent power to suspend a judgment or stay execution of a sentence in a criminal case. State v. Miller, 225 N.C. 213, 34 S.E.2d 143, and cases cited; State v. Jackson, 226 N.C. 66, 36 S.E.2d 706; State v. Smith, 233 N.C. 68, 62 S.E.2d 495. The probation statute, General Statutes, Ch. 15, Art. 20, adopted in 1937, did not withdraw this authority from the courts. That Act provides a procedure which is cumulative and concurrent rather than exclusive.

While the court was without jurisdiction to compel defendant to pay the damages inflicted on penalty of imprisonment, this does not mean that it might not suspend the execution of the sentence of imprisonment on condition the defendant compensate those whom he had injured. Such disposition of the case merely gave him the option to serve his sentence or accept the conditions imposed. State v. Smith, supra. If he was not content, he had the right either to reject the conditions or to appeal. State v. Miller, supra.

Not having...