Opinion
No. 39150.
April 26, 1954.
1. Criminal law — judgments — filing date.
In prosecution for unlawful sale of intoxicating liquor where county judge at January, 1950, term of court entered judgment and sentence, but suspended the sentence, and on June 23, 1952, at subsequent term on county attorney's petition to revoke suspension on grounds that judge was without authority to suspend sentences, and that defendant had violated terms of suspension, made an order revoking suspension and finding original judgment valid and requiring defendant to enter into bond to keep the peace and to be of good behavior, and defendant on June 30 filed motion for new trial and stay of execution which motion was overruled on the same day, contention that order of June 23 was void because it bore a filing date of June 30, was without merit.
2. Criminal law — courts — suspension of sentence — authority of county judges.
Prior to Chapters 347, 348, of the Laws of 1950, approved February 24, 1950, county judges were not authorized to suspend sentences in misdemeanor cases, and an attempt of county judge to do so was unlawful. Chaps. 347, 348, Laws 1950; Secs. 2541, 2596, 2659, Code 1942.
3. Criminal law — judgments — imposing additional penalty after final judgment — unlawful.
After final judgment, no additional penalty can be imposed, and where after judgment of sentence court thereafter required defendant to enter into bond to keep the peace such action on part of the court was error. Sec. 2596, Code 1942.
Headnotes as approved by Lee, J.
APPEAL from the circuit court of Forrest County; F. BURKITT COLLINS, Judge.
W. Arlington Jones, Hattiesburg, for appellant.
I. The judgment which was filed June 30, 1952, is null and void for the reason that the order and judgment of said court is dated June 23, 1942, and the record does not show that the Court had jurisdiction over the person of the appellant in June, 1942, or that the Court had jurisdiction in June, 1952.
II. The Court erred in refusing to sustain the motion of appellant to dismiss the petition, and erred in revoking the suspended sentence. Brooks v. Super Service, Inc., 183 Miss. 833, 183 So. 484; Hosey v. State, 136 Miss. 5, 100 So. 577; Lucas v. State, 130 Miss. 8, 93 So. 437; Malouf v. Gully, 187 Miss. 331, 192 So. 2; State v. Bates, 187 Miss. 172, 192 So. 832, 835, 836; State v. Bramlett (Miss.), 47 So. 433; State v. White, 140 Miss. 245, 105 So. 500; Sudduth v. State, 136 Miss. 742, 101 So. 711; Thornton v. State, 143 Miss. 262, 108 So. 709; Triplett v. State, 136 Miss. 320, 101 So. 501; Turnage v. State, 134 Miss. 431, 99 So. 9; Sec. 26, Constitution 1890; Secs. 1689, 2630, Code 1942; 20 Am. Jur., Sec. 34 p. 857; 24 Am. Jur., Sec. 40 p. 861; Anno. 27 A.L.R. 140.
III. The hearing on the petition denied the appellant a full and fair hearing on the question of whether or not there had been a violation of the law or some other act warranting a revocation of the suspended sentence, and the Court erred in denying to the appellant a full and fair hearing on the petition by refusing to permit the appellant to show, on the cross-examination of the State's witnesses, that the appellant had not been tried or convicted for the sale of intoxicating liquors, as set out in the petition, all of which was a denial to the appellant of due process of law under our State Constitution, and under the Fourteenth Amendment to the Constitution of the United States.
IV. The Court erred in reopening the judgment of the Court of January 9, 1950, to the extent of entering an additional judgment against appellant at the June, 1952, term of the County Court by requiring the appellant to enter into a peace bond in the sum of $1,000, to keep the peace for two years. Sec. 26, Constitution 1890; Secs. 1161, 2596, Code 1942.
Joe T. Patterson, Asst. Atty. Gen., Jackson, for appellee.
I. It is obvious from this record that the date of the order of the County Judge revoking the suspended sentence, which reads "June 23, 1942," is a typographical error on the part of the clerk in entering the order on the minutes of the Court, or is a typographical error in transcribing this record. This record clearly shows that all of the proceedings herein were had at the June, 1952, term of the County Court of Forrest County, Mississippi.
II. The State contends that the suspended sentence, entered by the County Court on January 9, 1950, at the regular January, 1950, term of said court, was done without authority of law, insofar as the sentence of sixty days was suspended, the judgment otherwise being as authorized by statute. Secs. 2541, 2659, Code 1942, as amended; Chaps. 347-8, Laws 1950.
III. We shall not discuss the testimony heard by the County Court on the question of whether or not this appellant violated the terms of his "suspended sentence," for the reason that appellant never did in fact and in law have a suspended sentence, the Court being wholly without authority to suspend a sentence at the time such was attempted.
IV. The State contends that there was no necessity for a hearing before the Court on the question of whether or not the appellant had violated the attempted suspended sentence ordered by the Court at a time when such Court was without authority to impose such sentence.
V. The appellant was at large under a void order, and there was no necessity for any proceedings or hearing to have warranted his being arrested and imprisoned to serve the sixty days' sentence originally imposed by the Court upon appellant's unconditional plea of guilty. Steadman v. State, 204 Miss. 322, 37 So.2d 357; Sec. 2596, Code 1942.
At the November 1949 term of the Circuit Court of Forrest County, P.D. Freeman was indicted for the unlawful sale of intoxicating liquor. The cause was transferred to the county court. On January 9, 1950, at the regular January 1950 term of that court, on arraignment, he pleaded guilty, and the court imposed a sentence of $250 and costs and 60 days to be served on the county roads, but suspended the days during his good behavior.
The county attorney of Forrest County, on June 5, 1952, filed a petition in the county court to revoke the previous suspension of sentence on two grounds, namely, (1) that the suspension was void and Freeman had not served the days, and (2) at any rate he had violated the terms thereof by unlawfully selling intoxicating liquor in the county on May 1, 1952.
Freeman answered the petition and denied all of the allegations thereof.
On the hearing, the State introduced proof of the sale of liquor on May 1, 1952.
At the conclusion of the evidence, the county judge, by his order of June 23, 1952, found that the original judgment of sentence was valid; that Freeman had not served the 60 days; that the suspension of the days was invalid as the county judge had no authority therefor at the time; and further found that Freeman nevertheless violated the condition of the suspension by selling whiskey on May 1, 1952. He therefore cancelled, revoked and held the suspension for naught, and remanded the defendant to the county jail for the execution of the balance of his sentence, namely, 60 days on the county roads. In addition, he required that the defendant enter into a bond in the sum of $1,000.00 to keep the peace and to be of good behavior, as provided for by Section 2596, Code of 1942.
On June 30, 1952, Freeman filed a motion for a new trial and stay of execution; and, on the same date, the court entered an order overruling this motion. On appeal, the circuit court affirmed the judgment of the county court, and Freeman appealed.
(Hn 1) Appellant argues that the judgment of June 23, 1952, is void because it does not appear to have been filed until June 30, 1952. He cites no authorities to sustain this contention. There was an extended hearing, and the judge made his finding on the 23rd. The motion for a new trial, the order overruling the same, and the final judgment all bear the same filing date. Obviously this contention is without merit.
(Hn 2) On the date of the judgment of sentence and attempted suspension of the days, the county judge not only did not have authority to suspend the sentence, but it was unlawful for him to do so. Section 2659, Code 1942. It was not until the enactment of Chapters 347 and 348, Laws of 1950, approved February 24, 1950, that county courts were authorized to suspend sentences in misdemeanor cases.
In Fuller v. State, 100 Miss. 811, 57 So. 806, decided in 1911, the defendant had been convicted of the unlawful sale of intoxicating liquor and was sentenced to pay a fine and serve a term in jail, but the jail sentence was suspended during his good behavior. At that time the court had no power to suspend sentences. This Court held that the attempted suspension was "void, and the defendant could have been taken into custody immediately upon the rendition of the judgment."
The Fuller case, supra, was followed in Steadman v. State, 204 Miss. 322, 37 So.2d 357, where the county attorney filed a petition to revoke that part of the judgment of sentence of the county court, which attempted to suspend Steadman's 90 days on the county roads. Since there was then no authority of the county court to suspend sentences, this Court said, "then and there, upon pronouncement of the sentence and the suspension of the execution of part thereof by the county court, in excess of its powers, the sheriff could have lawfully rearrested the prisoner for service of the suspended portion, without more court proceedings."
Consequently the county judge was correct in holding that a lawful sentence had been imposed; that no suspension thereof had in fact been made; and that the defendant was bound to serve the days.
In view of the invalidity of the attempted suspension and the correctness of the order of the court so holding, it is unnecessary to deal with assigned errors in connection with the admissibility and sufficiency of the State's evidence with regard to the sale of liquor on May 1, 1952.
(Hn 3) However, the court was in error in requiring the appellant to enter into bond to keep the peace in accordance with Section 2596, supra. The court could have imposed such additional penalty in the original judgment of sentence, but it did not do so. After the final judgment therein, no additional penalty can be imposed. This principle is so elemental that it requires no citation of authority.
The judgment of the county court as affirmed by the circuit court, will be modified so as to exclude the requirement that appellant shall give the bond herein mentioned, and, as so modified, will be affirmed.
Affirmed as modified.
Roberds, P.J., and Holmes, Arrington and Ethridge, JJ., concur.