Thompson v. State ( 1955 )

Mr. Justice Burnett

delivered tbe opinion of tbe Court.

Tbe appeal in this case is from tbe revocation of a suspended sentence by tbe trial court after bearing tbe proof in the matter. Tbe plaintiff in error bad due notice under tbe statute and was present and offered himself and other evidence to counter the proof offered on behalf of tbe State of a subsequent violation of tbe liquor law after getting out of jail from serving part of a six months sentence.

Tbe proof offered in behalf of tbe State, under tbe revocation of this sentence, was tbe same proof as offered in another case against tbe plaintiff in error upon which be was convicted and which is now pending before this Court. Of course tbe question of revocation was determined by the trial judge. After tbe trial judge bad beard this proof pro and con he revoked tbe suspended sentence and remanded tbe plaintiff in error to jail to serve tbe balance of a six months sentence which bad been subsequently imposed upon the plaintiff in error on bis plea of guilty to tbe possession of liquor. It is true tbe proof in tbe case for this revocation is not overly strong but nevertheless tbe court bad before it tbe witnesses pro and con and tbe court has thus determined their credibility that ■the plaintiff in error was handling liquor during this, suspended sentence.

The proof in brief is that a highway patrolman on a very bright moonlit night saw a taxi-cab going by on a nearby street with its red top light, blinkerlight, going. This patrolman then seeing this cab going by the red blinker light going followed it and a short distance thereafter they saw the plaintiff in error get ont of the cab and go back toward a post near a street corner and he had two bottles in his hands. The patrolman was frank to say they did not know what these bottles contained, whether whis- . ky, vinegar or what not. When they went np to the cab a man by the name of Snow was driving the cab and he had a small amount of whisky in it. They charged the plaintiff in error with the possession of the liquor because he had these bottles there even though Snow said it was his liquor.

We think that under a motion for revocation, under this type of evidence, that it is clearly within the province of the trial judge to determiné whether or not the suspended sentence should be revoked. To revoke a suspended sentence of the kind does not require the quantum of proof that is necessary to convict one of crime in the first instance. A suspended sentence granted by the trial judge in the first instance is granted on the theory and basis that the person whose sentence is suspended is punished sufficiently and that he will not violate the law again — that he will lead a lawful life. When it appears to the trial judge that his confidence in the prisoner, and his effort to aid the prisoner in suspending part of his sentence, has been violated then it is entirely within the rights of the trial judge to suspend such sentence. In the instant case the witnesses on both sides appeared before the trial judge and he was certainly the proper one to determine their credibility. We think that there is no error in the record and the judgment below will be affirmed.