State v. Stallings

66 S.E.2d 822 (1951) 234 N.C. 265

STATE
v.
STALLINGS.

No. 218.

Supreme Court of North Carolina.

October 10, 1951.

Harry McMullan, Atty. Gen. and Ralph Moody, Asst. Atty. Gen., and Robert B. Broughton, Member of Staff, Raleigh, for the State.

Shepard & Wood, Smithfield, for defendant, appellant.

DEVIN, Chief Justice.

The power of a court, in proper case, to suspend judgment on conviction of a criminal offense for a reasonable length of time, conditioned upon continued obedience to the law, is well recognized in this jurisdiction, and frequently exercised in order to carry out the more humane concept of the purpose of punishment for crime. State v. Tripp, 168 N.C. 150, 83 S.E. 630; State v. Wilson, 216 N.C. 130, 4 S.E.2d 440; State v. Gibson, 233 N.C. 691, 698, 65 S.E.2d 508; G.S. § 15-200. The propriety of suspending the sentence, ordinarily, is a matter resting in the sound discretion of the trial judge. The General Assembly has endeavored to implement the power of the court in this respect by making further provisions for probation and supervision. G.S. § 15-197 et seq.

Where for violation of one or more of the conditions of suspension the sentence was ordered into effect, the defendant, having impliedly consented to the conditions, had no right of appeal. However, he was not without remedy from an improper judgment, and when it was made to appear that a substantial wrong has been done, the Superior Court had power by writs of certiorari or recordari to review the action of the lower court. But in such case the court acted on the facts as they appeared of record, considering only the questions of law thus raised, with power to affirm, reverse or revise the judgment complained of. State v. Tripp, 168 N.C. 150, 83 S.E. 630; State v. Pelley, 221 N.C. 487, 20 S.E.2d 850; State v. King, 222 N.C. 137, 22 S.E.2d 241; State v. Maples, 232 N.C. 732, 62 S.E.2d 52. The defendant could contest the validity of the judgment ordering execution of the suspended sentence upon the ground that there was no evidence to support the finding that the conditions of suspension have been violated, or that the conditions were unreasonable and unenforceable, or for an unreasonable length of time. State v. Miller, 225 N.C. 213, 34 S.E.2d 143; State v. Robinson, 232 N.C. 418, 61 S.E.2d 106; State v. Smith, 233 N.C. 68, 62 S.E.2d 495; State v. Gibson, 233 N.C. 691, 65 S.E.2d 508; State v. Rhodes, 208 N.C. 241, 180 S.E. 84. While it is not entirely clear that the Recorder's Court judgment in the case at bar made observance of the laws relating to intoxicating liquor a condition upon which the judgment was suspended, it was so understood by the court without objection by the defendant on that score.

It may be noted that since this case was heard below the General Assembly has amended the procedure incident to invoking suspended sentences imposed by courts inferior to the Superior Court, Chapter 1038 Session Laws 1951, ratified April 14, 1951, and it is now provided that in such case the defendant shall have right of appeal to the Superior Court where the matter shall be heard de novo, but only on the issue whether or not the terms of the suspended sentence have been violated. The provisions of this statute, however, may not be applied to the case at bar which was heard below at February Term 1951.

Apparently the court below heard the matter de novo and permitted the introduction of additional evidence and made findings of fact upon which judgment was rendered affirming the judgment of the Recorder. State v. Rhodes, supra. However, treating the judgment below as an affirmance of the Recorder's Court judgment on the facts found by the Recorder, we think there was error. The only fact which formed the basis of the Recorder's ruling that the defendant had violated the condition of the suspended sentence relating to intoxicating liquor was the purported statement of the defendant to an officer, "when you are caught, you are caught." This statement, however, does not appear in the record of the evidence heard by the Recorder. The record shows that the Recorder also based his finding on testimony of a statement made by the defendant to a highway patrolman that this officer would not have to worry about catching him on the highway as the "officers had already got him."

We are constrained to hold that on the record before us the evidence heard by the Recorder and reported as forming the basis of his ruling is insufficient to support the finding that defendant had violated the conditions of the suspended sentence as set out in the original judgment. There was error in affirming the Recorder's judgment.

The charge against this defendant for the unlawful possession of intoxicating liquor on December 31, 1950, is pending in the Superior Court of Johnston County on defendant's appeal from the Recorder's judgment. That case will be heard de novo unaffected by the ruling on the present appeal.

For the reason stated, the judgment affirming the ruling of the Recorder on the suspended sentence must be reversed.