State v. Smith

• Decision Date: 02 January 1929
• Docket Number: 581.
• Citation: 146 S.E. 73,196 N.C. 438
• Parties: STATE v. SMITH.
• Court: North Carolina Supreme Court

146 S.E. 73

196 N.C. 438

STATE v. SMITH.

No. 581.

Supreme Court of North Carolina

January 2, 1929

Appeal from Superior Court, Swain County; Clayton Moore, Special Judge.

Sibbald Smith was convicted of slander. Sentence was suspended, and from a subsequent judgment, imposing sentence, defendant appeals. Error.

Judgment imposing sentence, originally suspended on condition of defendant's good behavior, where entered without opportunity for hearing and without evidence or finding of violation of conditions originally imposed, held unauthorized.

At the March term, 1927, of the superior court of Swain county, the defendant was convicted of slander of an innocent and virtuous woman, and the following judgment entered: "It is the judgment of the court that the defendant be confined in the common jail of Swain County for a period of four months and pay the costs of this action. Capias on this sentence not to issue on the express condition that he will not violate any of the laws of the State, and particularly not to talk about young girls in any way except complimentary remarks, and on the further condition that he be of good behavior toward all citizens of North Carolina and engage in some constant occupation regularly, and he is allowed until the first day of next term of Swain County Superior Court in which to pay the cost."

At the August term, 1928, the judge issued a capias for defendant and entered the following judgment: "This cause coming on to be heard, and it appearing to the court that the defendant has failed to comply with former judgment in this case in that he failed to pay the costs as required in the judgment. It is therefore ordered that the judgment be inforced and the defendant be sent to jail for four months to carry out said judgment."

Moody & Moody, of Murphy, and W. G. Hall and McKinley Edwards, both of Bryson City, for appellant.

Dennis G. Brummitt, Atty. Gen., and Frank Nash, Asst. Atty. Gen for the State.

BROGDEN J.

It does not appear from the record that the defendant was offered an opportunity in open court to be heard upon the question as to whether he had violated the conditions upon which the original judgment was suspended. Neither is there evidence or finding of fact to the effect that any of said conditions had been violated.

The exception of the defendant to the judgment appealed from is sustained. State v. Hardin, 183 N.C. 815, 112 S.E 593; State v....