State v. Tripp

• Decision Date: 02 December 1914
• Docket Number: 308.
• Citation: 83 S.E. 630,168 N.C. 150
• Parties: STATE v. TRIPP.
• Court: North Carolina Supreme Court

83 S.E. 630

168 N.C. 150

STATE v. TRIPP.

No. 308.

Supreme Court of North Carolina

December 2, 1914

Appeal from Superior Court, Durham County; Rountree, Judge.

D. L Tripp was sentenced to incarceration after a prior sentence had been suspended during good behavior, and, the judgment having been affirmed by the superior court, he appeals. Affirmed.

Where a recorder heard evidence and made findings in which he set aside a suspended sentence, and the findings showed a violation of the conditions of the suspension, the superior court, on review, properly refused to hear the evidence offered on that question.

On the hearing, it was made to appear that, on December 22, 1913 defendant was convicted in two cases in recorder's court of Durham, on warrants charging him with unlawfully selling spirituous liquors. In one case, he was sentenced to pay a fine of $100 and costs, which was complied with. In the second case, the following entry was made:

"The defendant comes into court and pleads not guilty. After hearing the evidence in this case, it is adjudged that the defendant is guilty, and the judgment is suspended, the defendant to give bond in the sum of $100 to appear at this court on the first Tuesday on each and every month for 12 months and show that he is of good behavior, and not handling spirituous liquors unlawfully." And, in reference to this last proceeding, the case on appeal states further:

"The defendant was personally present in court and also represented by counsel when said order and judgment was made, and consented thereto and did not appeal therefrom. The defendant gave the $100 bond required and appeared on the first Tuesday of each and every month as required when his conduct was inquired into, until the first Tuesday in May, 1914, when he failed to appear and was called and failed, but did appear on the 7th day of May, 1914, the forfeiture of the bond being then stricken out at the request of the defendant. On the 7th day of May the city attorney, Charles Scarlett, prosecuting officer of the recorder's court, stated that he desired to offer some evidence in regard to the defendant's conduct, and the case was continued from time to time until June 23, 1914, when it was heard before P. C. Graham, recorder of the recorder's court in Durham, in regular session held in the courthouse in the city of Durham. The state and the defendant being represented by counsel, the recorder heard evidence offered both by the state and the defendant, and after hearing said evidence found the facts."

Thereupon follows a detailed statement of facts as found by the recorder showing, since his conviction and before the hearing, a course of continued and repeated disorderly conduct on part of defendant in the city of Durham, including two violations of the criminal law (neither of these, however, being for unlawfully selling liquor), and the record, on the hearing before the recorder, then continues:

"That the conduct of the defendant has been subversive of good morals; that the defendant has not been of good behavior since December 31, 1913, and has violated the terms and conditions upon which said judgment was suspended. Whereupon the judgment of the court being prayed, it is ordered, considered, and adjudged that the defendant be sentenced to serve a term of six months in the common jail of Durham county to be assigned to work on the public roads of Durham county."

From this judgment, defendant appealed to the superior court and, on such appeal insisted: First, that defendant was entitled to a hearing de novo, as to the original issue of guilt or innocence; second, that the judge should hear evidence on the questions presented to the recorder's court at time sentence was imposed as to the behavior of defendant and pass upon same; third, that the Legislature could not confer upon the recorder's court jurisdiction of the offense. The court, being of opinion against the defendant, entered judgment that the sentence before the recorder's court be affirmed and defendant's appeal be dismissed. And from this judgment, defendant, having duly excepted, appealed to Supreme Court.

Bryant & Brogden, of Durham, for appellant.

The Attorney General and T. H. Calvert, Asst. Atty. Gen., for the State.

HOKE, J. (after stating the facts as above).

The power of a court, having jurisdiction, to suspend judgment on conviction in a criminal case, for determinate periods and for a reasonable length of time, has been recognized and upheld in several decisions of our court, as in State v. Everitt, 164 N.C. 399, 79 S.E. 274, 47 L. R. A. (N. S.) 848, State v. Hilton, 151 N.C. 687, 65 S.E. 1011, and State v. Crook, 115 N.C. 760, 20 S.E. 513, 29 L. R. A. 260, and we see no good reason why it should not be intrusted to the sound discretion of these municipal courts. It may be well to note that, while it has been sanctioned in this state to a somewhat greater extent than it existed at common law, there has been decided intimation given in some of the cases that the practice should not be hastily enlarged, as it may be susceptible of great abuse to the injury of the citizen. Thus, in Hilton's Case, the court said:

"In this state, as shown in Crook's Case, supra, the power to suspend judgment and later impose sentence has been somewhat extended in its scope, so as to allow a suspension of judgment on payment of costs, or other reasonable condition, or continuing the prayer for judgment from term to term to afford defendant opportunity to pay the cost or to make some compensation to the party injured, to be considered in the final sentence, or requiring him 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. These latter instances of this method of procedure seem to be innovations upon the exercise of the power to suspend judgment as it existed at common law; and, while they are well established with us by usage, the practice should not be readily or hastily enlarged or extended to occasions which might result in unusual punishment or unusual methods of administering the criminal law."

A perusal of these authorities will show further that this power to suspend judgment, in its origin and growth, has proceeded from a disposition to ameliorate the condition of defendant, and that it has been upheld in its usual application only with his express or implied assent. This was directly recognized in Everitt's Case as follows:

"Where a defendant

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