The conclusion reached on the basic question involved is sufficient to sustain the judgment below. This is the question: Does the evidence offered before the judge of the Superior Court, bearing thereon, support his finding of fact that defendant has breached the first condition upon which the sentence of June Term, 1945, was suspended, by violating the criminal laws pertaining to punch-boards, G. S., 14-302 ?
We are of opinion that it does.
This statute, G. S., 14-302, provides that “It shall be unlawful for any person ... to operate or keep in his possession, or the possession of any other person, firm, or corporation, for the purpose of being operated, any punch-board . . . that shall not produce for or give to the person operating, playing or patronizing same, whether personally or through another — by paying money or anything of value for the privilege of operating, playing or patronizing the same, whether through himself or another, the same return in market value, each and every time such punch-board ... is operated, played or patronized by paying of money or other thing of value for the privilege thereof . . and G. S., 14-303, provides that a violation of the provisions of G. S., 14-302, shall be a misdemeanor punishable by fine or imprisonment, or, in the discretion of the court, by both.
*651Defendant offered evidence on tbe bearing before tbe judge tending to sbow tbat be bas not committed any criminal offense under tbe above statute, or any other, since tbe date of tbe suspended sentence, and tbat tbe punch-boards of tbe character condemned by tbe statute found in bis place of business were those on band, and which were stored under tbe counter when be quit operating them prior to tbe date of tbe suspended sentence.
On tbe other band, there is evidence for tbe State tending to sbow tbat since tbe date of tbe suspended sentence not only bas defendant bad such punch-boards in bis possession in bis place of business, but tbat persons therein have been seen operating tbe boards, and, on one occasion, when tbe defendant was present. There is also evidence tending to sbow tbat on other occasions “tbe punched out tickets” bad been seen on tbe floor of tbe defendant’s place of business.
In tbe light of this evidence — sufficient at least for tbe inference drawn by tbe judge, we are unable to say tbat tbe finding of tbe judge is an abuse of tbe discretion vested in him in such matters. See S. v. Everitt, 164 N. C., 399, 79 S. E., 274; S. v. Hardin, 183 N. C., 815, 112 S. E., 593; S. v. Pelley, 221 N. C., 487, 20 S. E. (2d), 850, and many others of like import.
In tbe Pelley case, supra, Denny, J., speaking to tbe subject for tbe Court, recently said: “These findings of fact and tbe judgment entered upon them were matters to be determined in tbe sound discretion of tbe court and tbe exercise of tbat discretion, in tbe absence of gross abuse, cannot be reviewed here.”
Hence, it is unnecessary to consider any other finding of fact pertaining to a violation of tbe criminal law.
Moreover, as tbe record fails to show tbat tbe court passed upon tbe constitutional question raised by defendant with respect to tbe third condition upon which tbe sentence was suspended, tbat question will not be, and is not considered on this appeal.
Tbe judgment below is
Affirmed.