State v. Simmington , 235 N.C. 612 ( 1952 )

70 S.E.2d 842 (1952) 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 appealed, he was relegated to his right to contest the execution of the sentence for that there was no evidence to support a finding that the conditions imposed have been breached or the conditions are unreasonable and unenforceable or for an unreasonable length of time. State v. Miller, supra. He elected to challenge the conditions on the grounds set forth in his affidavit. He has not made good his attack. Indeed he has abandoned his original foray and sought another "soft spot" as the point of assault. His change of tactics came too late. Leggett v. Southeastern People's College, Inc., 234 N.C. 595, 68 S.E.2d 263, and cases cited.

Myers v. Barnhardt, 202 N.C. 49, 161 S.E. 715, is clearly distinguishable. There it appeared that the judgment in a criminal case had been suspended on condition the defendant give a bond guaranteeing the payment of damages to the injured party. The plaintiff was suing to recover on the bond. The court said—and rightly so— that the sentence could not be invoked to compel the payment of the bond. The condition on which the sentence was suspended was the execution of the bond. When the bond was executed, approved, and filed, the condition imposed was met and the power of the court in the criminal cause terminated. Thereafter plaintiff was relegated to his right to recover on the bond.

In the final analysis defendant stood convicted of reckless driving. Apparently his unlawful use of an automobile inflicted injury upon a number of persons. The court afforded him an opportunity to escape the service of the sentence pronounced by observing the conditions imposed. He accepted. He now belatedly withdraws his acceptance and rejects the conditions. He thus furnishes the grounds for invoking the original sentence. When he is imprisoned, he will be imprisoned for his breach of the criminal law and not for the failure to pay damages.

The judgment of the court below is affirmed.