State v. . Shepherd

122 S.E. 467, 187 N.C. 609, 1924 N.C. LEXIS 356

• Court: Supreme Court of North Carolina
• Decided: April 23, 1924
• Status: Published

Opinion

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: