State v. Pelley , 221 N.C. 487 ( 1942 )

DeNNY, J.

The record contains 200 exceptive assignments of error. After a careful examination of each of them, we are of opinion that those numbered 1 through 182, 185 through 189, and 196 are without substantial merit. The remaining 12 may be disposed of by a consideration of the following questions: (1) Did the court have power to enter a judgment in this cause, at the January Term, 1942, of the Superior Court of Buncombe County? (2) Did the defendant violate the conditions of the judgment entered 18 February, 1935?

In the judgment entered against the defendant by the court, 18 February, 1935, the prison sentence entered on Count 1 was suspended for a period of five years upon certain conditions. On Count 2, under which the defendant had also been convicted, prayer for judgment was continued for five years.

Unquestionably if the court had made no effort to obtain custody of the defendant until after the expiration of five years from and after 18 February, 1935, the court would have been without authority to enter judgment. S. v. Hilton, 151 N. C., 687, 65 S. E., 1011; S. v. Gooding, 194 N. C., 271, 139 S. E., 436. However, at any time within five years after the entry of the judgment, upon alleged violation of the conditions upon which the judgment was suspended, the court had the right to require the defendant to appear before said court, by notice or by capias, if necessary, and inquire into the alleged violation of the conditions in said judgment, and, if found to he true, to put the suspended sentence into effect and to enter judgment on the second count, if in the sound discretion of the court the facts justified such action. S. v. Shepherd, 187 N. C., 609, 122 S. E., 467; S. v. Phillips, 185 N. C., 614, 115 S. E., 893; S. v. Greer, 173 N. C., 759, 92 S. E., 149.

Public Laws 1937, ch. 132, sec. 4 (N. C. Code, sec. 4665 [4]), provides : “. . . At any time during the period of probation or suspension of sentence, the court may issue a warrant and cause the defendant to be arrested for violating any of the conditions of probation or suspension of sentence. . . . Upon such arrest, with or without warrant, the court shall cause the defendant to be brought before it in or out of term and may revoke the probation or suspension of sentence, and shall proceed to deal with the case as if there had-been no probation or suspension of sentence.”

The above statute does not enlarge the power of our courts in respect to judgments of the character under consideration. The courts in this jurisdiction have exercised these powers through the years as a part of their inherent common law rights. S. v. Hilton, supra; S. v. Everitt, 164 N. C., 399, 79 S. E., 274.

Did the defendant, by absenting himself from the State of North Carolina from about 19 October, 1939, until October, 1941, prevent the court from determining witbin tbe aforesaid five-year period, whether or not the conditions of the suspended judgment had been violated, thereby suspending the limitation of time for that period? We think so. The defendant was present in open court on 18 February, 1935, when the prison sentence was suspended and the prayer for judgment was continued, and accepted the conditions on which said sentence was suspended. Upon a violation or an alleged violation of said conditions, it was the duty of the defendant to respond to the notice of the court in order that the court might determine whether or not he had violated the conditions in said judgment. S. v. Crook, 115 N. C., 760, 20 S. E., 513; S. v. Everitt, supra. When the defendant departed the jurisdiction of the court, the time clock stopped and the proceedings thereafter are to be considered as having transpired within the five-year period.

Statutes of limitation do not run in favor of an accused person while he is a fugitive from justice. “The fact that the statute had begun to run in favor of accused before he fled from justice does not prevent his flight from operating as a suspension of the statute, and he cannot insist in such a ease that the time of his absence shall be computed as a part of the statutory limitation.” 16 C. J., p. 229, sec. 351.

“To constitute one a fugitive from justice from a given state it is essential that the person having been within the demanding state shall have left it and be within the jurisdiction of the state from which his return is demanded, and that the person shall have incurred guilt before he left the former state and while bodily present therein.” 25 C. J., 257, sec. 12.

This defendant was arrested on 10 February, 1940, within five years from the entry of the original judgment herein, by the police authorities of the city of Washington, D. C., on a capias or alias capias issued out of the Superior Court of Buncombe County, N. C. The defendant cannot complain at the delay in entering the judgment from which he now appeals. The evidence discloses that defendant knew the authorities in Buncombe County wanted him for the alleged violation of the conditions of his suspended sentence, and he sought to remain beyond the jurisdiction of the court until after 18 February, 1940. After his arrest defendant refused to return to North Carolina. The Governor of North Carolina issued requisition papers to the proper official of the District of Columbia for the extradition of the defendant to this State.

The defendant applied for his release in habeas corpus proceedings in the .United States District Court for the District of Columbia, relief was denied by said court, appeal was taken to the United States Court of Appeals for the District of Columbia, and the decision of the lower court affirmed. In this case, in which defendant resisted extradition to North Carolina, he was adjudged a fugitive from justice by the Federal Court. Pelley v. Colpoys, 122 Fed. (2d), 12. Petition for writ of certiorari to the Supreme Court of the United States was denied. Pelley v. Colpoys, U. S. Sup. Court, 86 Law Ed., 69. The motion to withhold the order denying petition for writ of certiorari was denied. Pelley v. Colpoys, 86 U. S. (Law. Ed.), 87. After the decision of the Supreme Court of the United States, denying motion to withhold the order denying petition for writ of certiorari to said Court, the defendant, as required by the original order of the United States District Court for the District of Columbia, returned to Buncombe County, N. C., in October, 1941, where he was taken into custody by the sheriff of Buncombe County on an alias capias 24 October, 1941. Defendant applied for a writ of habeas corpus 25 October, 1941. Bond was fixed and the defendant released. By consent of the State and the defendant, the hearing on its merits and the application for writ of habeas corpus were heard at the January Term, 1942, of the Superior Court of Buncombe County.

The failure to enter judgment within the five-year period, prescribed in the original judgment, was not due to the lack of diligence on the part of the court, but was chargeable solely to the conduct of defendant. Therefore, we hold that the court had not lost jurisdiction of the defendant by reason of the lapse of time and that the court had power to enter judgment at January Term, 1942, of the Superior Court of Buncombe County.

The defendant contends that the original judgment in this cause was an alternative one and that he has fully complied with the terms thereof. Under the provisions of chapter 190, sec. 23, Public Laws 1925, as amended by chapter 149, sec. 23, Public Laws 1927 (section 3924 [w], N. C. Code of 1939), the statute under which the defendant was tried and convicted, the court was authorized to imprison a person convicted thereunder for not more than five years or impose a fine of not more than $1,000.00, or both. Therefore, the court was authorized to impose a fine and a prison sentence. The judgment herein is not objectionable in that respect. Surely in the light of the decisions of this Court, no one can seriously question the power of the court to suspend the prison sentence upon conditions to be observed by the defendant. In the case of Myers v. Barnhardt, 202 N. C., 49, 161 S. E., 715, Stacy, C. J., said: “The practice of suspending judgments in criminal prosecutions, upon terms that are reasonable and just, or staying executions therein for a time, with the consent of the defendant, has so long prevailed in our courts of general jurisdiction that it may now be considered established, both by custom and judicial decision, as a part of the permissible procedure in such cases. S. v. Edwards, 192 N. C., 321, 135 S. E., 37; S. v. Everitt, 164 N. C., 399, 79 S. E., 274; S. v. Hilton, 151 N. C., 687, 65 S. E., 1011.”

Likewise, the court had power to continue the prayer for judgment on the second count. In the case of S. v. Ray, 212 N. C., 748, 194 S. E., 472, Devin, J., said: “The power of the Superior Court to continue the prayer for judgment and to suspend the execution of a judgment, upon conditions, in proper cases and upon terms that are reasonable and just, and thereafter, upon determination that the conditions had been breached, to impose sentence and execute the judgment, has been upheld by this Court in numerous cases. S. v. Hilton, 151 N. C., 687, 65 S. E., 1011; S. v. Everitt, 164 N. C., 399, 79 S. E., 274; S. v. Burnett, 174 N. C., 796, 93 S. E., 473; S. v. Hardin, 183 N. C., 815, 112 S. E., 593; S. v. Shepherd, 187 N. C., 609, 122 S. E., 467; S. v. Edwards, 192 N. C., 321, 135 S. E., 37; Berman v. U. S., 82 Law Ed. (U. S.), 212. The defendant, having pleaded guilty of a misdemeanor, and having consented, or, at least, offered no objection to the conditions upon which the prayer for judgment was continued, in the one instance, and the execution of .sentence suspended in the other, is in no position now to complain. S. v. Crook, 115 N. C., 760, 20 S. E., 513.” S. v. Wilson, 216 N. C., 130, 4 S. E. (2d), 440.

The defendant accepted the conditions upon which the prison sentence was suspended, and he has no right to challenge its validity now, not having appealed therefrom at the time of its entry. S. v. Ray, supra; S. v. Henderson, 207 N. C., 258, 176 S. E., 758.

Did the defendant, prior to 19 October, 1939, violate the conditions on which his prison sentence was suspended ? One of the conditions on which the sentence was suspended for five years was: “That the defendant be and remain continuously of good behavior.” What constitutes good behavior is defined in 15 Am. Jur., sec. 484, p. 138, as follows: “Good behavior means conduct conforming to the law.” That definition is in accord with the interpretation of the meaning of “good behavior” by this Court. S. v. Hardin, 183 N. C., 815, 112 S. E., 593.

In the judgment of the court entered in January, 1942, his Honor found the defendant had violated the terms of the suspended sentence and did not remain of good behavior during the term of said suspended sentence, and that the defendant had violated the following criminal laws of the State of North Carolina, in force and effect during the term of said suspended sentence, as follows: Sections 4229; 4290; 978, subsection 7; and 4180, of the Consolidated Statutes of North Carolina. These findings of fact appear in the judgment copied in the statement of facts in this case, together with the further finding of fact that the defendant absented himself from North Carolina continuously from about 1 August, 1939, until October, 1941.

The defendant insists that the court admitted incompetent evidence at the hearing, and therefore these findings of fact should not be sustained. His Honor, in determining whether or not the terms of the suspended judgment had been violated was not bound by the strict rules of evidence required in a jury trial. This Court said, in S. v. Greer, supra: “When judgment is suspended in a criminal action upon good behavior, or other conditions, the proceedings to ascertain whether the terms have been complied with are addressed to the reasonable discretion of the judge of the court, and do not come within the jury’s province. The findings of the judge, and his judgment upon them, are not reviewable upon appeal unless there is a manifest abuse of such discretion.” S. v. Hoggard, 180 N. C., 678, 103 S. E., 891.

The evidence heard by the court, in a proceedings of this character, is not for the purpose of punishing the defendant for the offenses committed since judgment was suspended, or the prayer for judgment continued, but to determine what punishment shall be imposed under the original judgment for offenses for which he has been convicted. Defendant is not on trial for a new offense. S. v. Everitt, supra.

Certain testimony of this defendant before the Dies Committee was offered by the State, most of which was admitted without objection. That evidence, upon objection, was inadmissible by reason of the provisions of U. S. C. A., Title 28, sec. 634. However, a careful perusal of the testimony leads to the conclusion that sufficient competent evidence was introduced by the State in this hearing to sustain his Honor’s findings of fact. These findings of fact and the judgment entered upon them were 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. S. v. Everitt, supra; S. v. Greer, supra. There is no evidence of an abuse of discretion by his Honor in this proceedings.

The judgment of the court below is

Affirmed.