State v. Shepherd, 187 N.C. 609 (1924)

April 23, 1924 · Supreme Court of North Carolina

187 N.C. 609

STATE v. J. T. (TOM) SHEPHERD.

(Filed 23 April, 1924.)

Judgments Suspended — Conditions Broken — Sentence — Intoxicating liquors — Criminal law.

Where the defendant has been convicted of violating the prohibition law and agrees to and takes advantage of a suspension of a judgment against him, upon a specific condition that a certain sentence authorized by law shall be imposed should he violate the conditions, among others that he personally and entirely abstain from the use of intoxicating liquors, he cannot be heard to complain, upon the ascertainment by the court that he has violated this condition, that it was unreasonable, or that the sentence agreed upon could not properly be imposed.

Appeal by defendant from Staclc, J., at October Term, 1923, of ElCHMOND.

On tbe bearing, it was made to appear tbat at tbe July Term^^2,2, Eicbmond Superior Oourt, tbe defendant pleaded guilty to violatM^s^j tbe probibition law in two cases, Nos. 31 and 99. A'-JiV

Tbe following judgment was entered in No. 31:

“Judgment baying been pronounced against tbe defendant in No. 99, as set out in tbe record, and it appearing to tbe court tbat bis near neighbors — prominent citizens — bave come to tbe court in person and requested leniency and, if possible, reformation of tbe defendant, tbe court suspends tbis judgment for eighteen months, with tbe consent of tbe defendant and bis counsel and of tbe solicitor, and upon tbe recommendation of bis near neighbors, upon tbe following conditions:

“1. He is to abstain, personally, entirely, from tbe use of intoxicating liquors.

“2. He is to be of good behavior and show tbe court at each term tbat be has been of good behavior, and especially that be has not in any way whatever unlawfully dealt with, manufactured or sold or in any wise violated tbe liquor laws.

“3. He is required to give a bond in tbe sum of $1,500 to appear at each and every criminal term during tbis period of eighteen months and show to tbe court tbat be has abstained from tbe use of liquor himself, and has not in any wise violated tbe liquor law.

“4. Tbe judgment is also suspended upon conditions tbat if be violates any of tbe requirements above set out — -that is to say, indulge in tbe use of spirituous liquor or in any wise violate tbe law, tbat tbe eourt will enter a sentence against him of imprisonment in the county jail for twelve months and be assigned to work on tbe public roads of Richmond County. Defendant is in custody until tbe orders in No. 99 and No. 31 are complied with.”

Tbe record states tbat tbe defendant paid tbe fine imposed in No. 99, and also paid tbe costs in both cases, tbe costs of tbe sci. fa., gave tbe appearance bond of $1,500, and was released from custody.

At tbe October Term, 1923, being one of tbe terms at which tbe defendant was to report and show compliance with the terms of tbe judgment entered in No. 31, it was found as a fact tbat be bad violated one of tbe conditions of.the suspended judgment, in tbat be failed “to abstain, personally, entirely, from tbe use of intoxicating liquors.” Whereupon, tbe defendant .was ordered into tbe custody of tbe sheriff, to be committed to tbe common jail for a period of twelve months and assigned to work on tbe public roads, as stipulated in tbe consent judgment entered at tbe July Term, 1922. From tbis order and judgment tbe defendant appeals.

^A-^piey-General Manning and Assistant Attorney-General Nash for

. G. Sedberry for defendant.

Stacy, J.,

after stating the ease: It is the position of the defendant that the first condition of the suspended judgment, requiring him “to abstain, personally, entirely, from the use of intoxicating liquors,” is unreasonable, and hence he should not be held to answer for its violation. We cannot so hold. This provision constitutes an integral part of the treaty, or covenant, which the defendant voluntarily entered into with the court. It is one of the terms of grace, upon the observance of which the original judgment was to remain suspended. Speaking to a similar question, in S. v. Phillips, 185 N. C., p. 620, Walker, J., said:

“If the defendant was sentenced upon his pleas of guilty, and the judgment was suspended, or its immediate execution withheld, on a condition, and the State alleged a violation of that condition, and asked for the enforcement of the sentence because of the violation of the condition upon which it was based, the judge should have required the defendant to appear before him, by notice or by capias, if necessary, and inquire into the allegation of the State, and, if found to be true by him, he should have enforced the judgment or taken such other course as his finding may have justified.”

It will be observed that the suspension of judgment -in the instant case was upon specific, definite conditions, and not simply upon “good behavior” in general, as was the case in S. v. Hardin, 183 N. C., 815.

The Attorney-General also relies upon the following cases as supporting, either directly or in tendency, the order and judgment entered below: S. v. Strange, 183 N. C., 175; S. v. Vickers, 184 N. C., 677; S. v. Hoggard, 180 N. C., 678; S. v. Greer, 173 N. C., 759; S. v. Everitt, 164 N. C., 399.

There is no error appearing on the record.

Affirmed: