State v. Davis

92 S.E.2d 177 (1956) 243 N.C. 754

STATE
v.
Edna Shuford DAVIS.

No. 294.

Supreme Court of North Carolina.

April 11, 1956.

Wm. B. Rodman, Jr., Atty. Gen., Harry W. McGalliard, Asst. Atty. Gen., for the State.

Deal, Hutchins & Minor, Winston-Salem, for defendant.

DENNY, Justice.

No case on appeal setting out the evidence introduced in the hearing below was served within the time allowed by the court. However, it is our understanding that the attorneys for the defendant are not responsible for the failure to serve a case on appeal. Even so, the defendant is entitled to a hearing on the record proper. Bell v. Nivens, 225 N.C. 35, 33 S.E.2d 66; Lawrence v. Lawrence, 226 N.C. 221, 37 S.E.2d 496; Hall v. Robinson, 228 N.C. 44, 44 S.E.2d 345; State v. Williams, 235 N.C. 429, 70 S.E.2d 1; Little v. Sheets, 239 N.C. 430, 80 S.E.2d 44.

The record discloses that the judge of the Municipal Court of the City of Hickory found that the defendant had violated the second condition of the suspended sentence. But, when the defendant appealed to the Superior Court, the matter was heard de novo, G.S. § 15-200.1, and the court did not find wherein the defendant had violated the conditions upon which the judgment was suspended.

Ordinarily, in hearings of this character, the findings of fact and the judgment entered thereupon are matters to be determined in the sound discretion of the court, and the exercise of that discretion in the absence of gross abuse cannot be reviewed here. State v. Marsh, 225 N.C. 648, 36 S.E.2d 244; State v. Pelley, 221 N.C. 487, 20 S.E.2d 850; State v. Greer, 173 N.C. 759, 92 S.E. 147; State v. Everitt, 164 N.C. 399, 79 S.E. 274, 47 L.R.A.,N.S., 848. But, where the finding of the court does not state wherein a defendant has violated the conditions and there is a question as to the validity of one or more of the conditions imposed, the defendant is entitled to have the cause remanded for a specific finding as to wherein he has violated the conditions upon which the sentence was suspended. It is only by such a finding that a defendant may be able to test the validity of a condition he believes to be illegal and void in the event the purported violation is based on such condition.

In the absence of some unusual or peculiar circumstance, it is not unlawful or unreasonable to allow people to congregate or remain in one's home after the hours of darkness. Therefore, in our opinion, a finding that the defendant had violated the second condition in the judgment suspending the sentence, would not be sufficient to justify putting the prison sentence into effect unless it was shown by the evidence or found as a fact that the defendant allowed people to congregate or remain in her home with such frequency and in such numbers as to raise an inference that she was engaged in fortune telling or aiding in prostitution, or violating the law in some other respect.

We think the ends of justice require that this cause be remanded for further hearing in accord with the views expressed herein. Let the judgment entered below be vacated but the cause retained for further hearing.

Remanded.

DEVIN, J., took no part in the consideration or decision of this case.