Opinion
No. 30454.
March 6, 1933. Suggestion of Error Overruled March 20, 1933.
1. CRIMINAL LAW.
On appeal from order directing execution of suspended sentence, Supreme Court must assume sentence imposed was under statute so permitting, where indictment was not part of record.
2. CRIMINAL LAW.
If suspension of sentence was void, it could have been treated as nullity, and defendant as being at all times subject to its execution, or court could at any time order sentence to be executed.
3. CRIMINAL LAW.
"Nol pros" held not equivalent of "acquittal."
4. CRIMINAL LAW. Evidence held to warrant court's order directing execution of suspended criminal sentence.
Evidence on which court revoked suspension of sentence and directed execution thereof was in substance that defendant resided by side of road, that automobiles were frequently parked nearby, that people were seen to enter his residence sober and return therefrom intoxicated, and that he himself was frequently seen intoxicated.
5. CRIMINAL LAW.
Statute respecting bonds to keep peace for not longer than two years had no bearing on power to revoke suspension of sentence after two years (Code 1930, section 1349).
6. CRIMINAL LAW.
Statute requiring statement of sales of alcohol to be kept on file for two years had no bearing on revoking suspension of sentence after two years (Code 1930, section 1998).
APPEAL from Circuit Court of Perry County.
A.T.L. Watkins, of New Augusta, for appellant.
Suspending during "good behavior" is as indefinite and uncertain as the weather; good behavior in the mind of some persons would be violated, if he had played at cards, and by others, it would be diabolical, for him to dance, it certainly would not be good behavior to violate the game law and a thousand other things we might mention: The terms of the suspension, whatever they were were unknown, they should have been set out in the judgment or the sentence it might happen, just as it did, the trial judge would go out of office and a new judge come in that knew nothing of the terms or condition, nor the merits of the case.
Section 1339, Code 1927, in effect September, 1928, authorized the suspension of sentence, "for a definite period of time." We fail to find any authority in law, for an indefinite suspension or a lifetime probation.
Section 1338, Code 1927.
A suspension of a sentence must be for a definite time as well as definite terms, under Section 2309, Code 1927.
Section 1339, Code 1927.
The court will please take notice that it was not an attempt to sentence, but an attempt to revoke a suspension of a void sentence.
After the close of the term, at which the judgment was rendered the court was without power to amend its judgment, which as we remember is in conformity to common law.
Section 1339, Code of 1927; Buck v. State, 60 So. 322.
If the court sustains this incarceration in my humble judgment we will have some new law.
Vol. 37, United States Supreme Court Reporter, page 72.
We may suspicion, but the wisdom of the law is such that it refuses to allow any person to be punished for any crime however strong and well founded the suspicion, there must be proof.
McComb City v. Hill, 56 So. 346.
The Fuller Case, 57 So. 806, has no application here, because at that time there was no authority to suspend any sentence, nor even a semblance of authority, the court holding that when a court pronounced a sentence, it could not be recalled, it has never devolved on any person to request for incarceration, especially on suspicion, that partakes of the nature ridiculous.
W.D. Conn, Jr., Assistant Attorney-General, for the state.
At the time this plea of guilty was accepted, chapter 189 of the Laws of 1918, was in full force and effect. Section 2, and section 17 of this chapter define the crime and fix the punishment. It is also interesting to note that the provisions of this chapter 189 of the Laws of 1918 are brought forward as a part of section 1974 of the Mississippi Code of 1930.
The statute in force at the time this suspension was granted appears as section 1338 of Hemingway's Code of 1927 and there is no time limit imposed by this statute.
Appellant contends that the successor of the trial judge who granted this suspension had no right to revoke it. I submit that the statute, above quoted, provides for no such restrictions and refers to the office of circuit judge rather than to the particular person occupying that position at any particular time.
It was held that where a judgment in a criminal case has been suspended on the condition of payment of costs and good behavior, the term "good behavior" means conduct that is authorized by law and "bad behavior" means conduct such as the law will punish.
State v. Hardin, 183 N.C. 815, 112 S.E. 593.
The term "good behavior" as used in the order suspending sentence upon a defendant during good behavior, means merely conduct conformable to law.
Ex parte Hamm, 24 N.M. 3, 172 P. 190; U.S. v. Hrashky, 240 Ill. 560, 88 N.E. 1031; In re Spenser (U.S.), 22 Fed. Cas. 921.
The term "good behavior" as used in the statute and as used in the order of the court, suspending a part of this sentence, means that so long as the defendant abides by the law and lives and acts as a law-abiding citizen, particularly so far as prohibition laws are concerned, the suspension would last indefinitely, and that the use of the term "good behavior" does not render the suspension void for uncertainty and indefiniteness.
Section 2309 is a part and parcel of chapter 210, Laws of 1922, and has no application to any of the balance this state, and, under the general statute, section 1338 of Hemingway's Code of 1927, the court had authority of the statutes on the subject of intoxicating liquors in to suspend this sentence.
This is an appeal from an order directing the execution of a suspended criminal sentence. The appellant's complaints are: (1) That the sentence originally imposed is excessive; (2) that the suspension of the execution of the sentence was for an indefinite period and therefore void, and that, the term of court at which the judgment suspending the sentence was rendered having passed, the court was without power to order the sentence to be executed; (3) that, if the suspension of the sentence is valid, the appellant was not shown to have violated the terms thereof; and (4) that the court was without power to revoke the suspension of the sentence, for the reason that the judgment of which the suspension is a part was rendered more than two years before the order of revocation was entered.
The indictment on which the original judgment of conviction was rendered is not in the record, and, although the appellant had ample opportunity so to do, he failed to make it a part thereof. The judgment does not disclose the offense for the commission of which the appellant was setenced; its language is as follows:
"Comes the district attorney who prosecutes for the state and the defendant, Tom Bolton in his own proper person, who had been arraigned at a former day of this term of the court for a plea to the indictment against him and having plead guilty to the charge against him is again caused to stand before the bar of the court and asked if he had any thing to say why the court should not pronounce the sentence against him, said naught. It is therefore considered by the court that the defendant be and he is hereby sentenced to pay a fine of two hundred dollars and all cost of court in this cause and to serve thirty days in the county jail, one hundred dollars of said fine and said jail sentence is suspended during the good behavior of the defendant."
It appears from the briefs of counsel and from other portions of the record, but not in such form as to justify our acting thereon, that the conviction was for some violation of our intoxicating liquor laws. Counsel for the appellant says that the sentence was imposed under section 2265, Hemingway's Code 1927, but the Assistant Attorney General says that it was imposed under section 17, chapter 189, Laws 1918. The record does not enable us to say which contention is correct, and, since the appellant could have eliminated this difficulty by having the indictment made a part of the record, we must assume that the sentence imposed was under a statute so permitting.
In support of his second contention, the appellant, through his counsel, says that sections 1338 and 1339, Hemingway's Code 1927, sections 1298 and 1299, Code 1930, authorize the suspension of a sentence for only a definite period. It will not be necessary for us to determine whether this is true, for, if the suspension of the sentence is void, then it could have been treated as a nullity, and the appellant as being at all times subject to its execution, Fuller v. State, 100 Miss. 811, 57 So. 806, 39 L.R.A. (N.S.) 242, Ann. Cas. 1914A, 98; or, if the court which imposed the sentence desired, it could thereafter at any time order the sentence to be executed. Compare Gibson v. State, 68 Miss. 241, 8 So. 329; Ex parte United States, 242 U.S. 27, 37 S.Ct. 72, 61 L.Ed. 129, L.R.A. 1917E, 1178, Ann. Cas. 1917B, 355; Miller v. Aderhold, 53 S.Ct. 325, 77 L.Ed. ___.
If the suspension and the terms thereof are valid, then the appellant says that the evidence affirmatively discloses that the terms of the suspension were not violated. He was indicted for the unlawful sale of intoxicating liquor, and a day or two before the suspension of the sentence was revoked that indictment was nol prossed, and the defendant discharged therefrom. This the appellant says was equivalent to an acquittal, and therefore is an adjudication that the appellant was not guilty of the crime charged, and therefore had not violated the terms of the suspension. There is no merit in this contention for two reasons: (1) The nol pros was not the equivalent of an acquittal; and (2) an actual acquittal of a particular crime would not have negatived the commission by the appellant of other crimes. The evidence on which the court revoked the suspension of the sentence is to the effect that the appellant resided by the side of a road, that automobiles were frequently parked near thereto, and people were seen to enter his residence sober and return therefrom intoxicated, and that he himself was frequently seen also intoxicated. This is sufficient for the purpose of deciding the appellant's good behavior vel non, and warranted the court in holding that he continued not only to possess but to distribute intoxicating liquor.
While the record does not disclose the date of the rendition of the judgment of conviction and suspension of sentence, it is said by counsel for the appellant, and the Assistant Attorney-General seems to admit, that it was rendered more than two years before the revocation of the suspension, and counsel for the appellant says that the court's power to revoke the suspension of the sentence terminated at the expiration of two years from its imposition, citing in support thereof sections 1388 and 2271, Hemingway's Code 1927, sections 1349 and 1998, Code 1930. These statutes have no bearing hereon.
Affirmed.