21 S.W.2d 608 | Ark. | 1929
Brady Denham prosecutes this appeal to reverse a judgment of the circuit court revoking a suspension of sentence against him for unlawfully selling intoxicating liquors. On the 17th day of January, 1927, at a regular term of the Hot Spring Circuit Court, Brady Denham entered a plea of guilty to the crime of selling intoxicating liquors. The court, upon the request of the prosecuting attorney, and because it appeared that the defendant had already served seven months in the Federal prison for the same offense, granted him a suspension of sentence conditioned on his making a new bail *383 bond in the sum of $500, and upon good behavior. It was, therefore, ordered and adjudged that the suspension be granted upon the conditions above set forth.
On the 30th day of July, 1929, act a regular term of court, upon motion of the prosecuting attorney and after hearing the evidence of witnesses, the court found that the suspension of sentence should be revoked, and an order to that effect was entered of record.
Upon a hearing of the motion to revoke the suspended sentence, two revenue officers of the United States and a deputy sheriff of Hot Spring County were introduced as witnesses by the State. According to their evidence, they went to the house where Brady Denham and Clyde Otts were living in Hot Spring County, and looked around the woods trying to find signs of a still being operated. They finally came to a spring near the house, and, at a little distance from it, they found a still set which, from the circumstances around it and from their experience as revenue officers, they thought had been operated a day or two before. The spring near which it was situated had plain tracks from there to the house where Brady Denham and Clyde Otts lived. From the appearance of things around there, Denham and Otts got their drinking and using water from the spring, and also washed their clothes there. In a little outhouse, which was locked up, they found two barrels of mash and a cap and stillworm. The barrels of mash had been put down into a hole in the ground, and then covered up. They waited there for a while and saw Brady Denham and Clyde Otts coming towards the house. When they arrested them, Denham told Otts that this would mean Tucker Farm (meaning the penitentiary farm) for them and also exclaimed, "Oh, my God! what will become of my wife and children now?" When the officers first saw Denham and Otts coming towards them, they turned around and started to go back in the direction from which they came; but the officers stopped them and then arrested them. *384
According to the testimony of Clyde Otts, the still belonged to him, and Denham was not in any way interested in its ownership or operation. He said that he had only made one run with the still, and that Denham had nothing to do with it.
It was first contended that, because more than a year had elapsed between the date of the suspension of sentence by the circuit court and the order of that court revoking the suspension of sentence, that the order of revocation was void. This is based on the fact that, under 6161 of Crawford Moses' Digest, any person convicted of selling intoxicating liquors shall be guilty of a felony and imprisoned in the State Penitentiary for one year.
In Davis v. State,
The Legislature of 1923 passed an act authorizing the circuit courts to suspend sentences under certain conditions, and also giving them the power to revoke the suspension of sentences for certain reasons. Acts of 1923, p. 40, and Castle's Supplement to Crawford Moses' Digest, 3229a and 3229b. The first section provides that the circuit court shall have authority, if it shall deem it best for the defendant and no harm to society, to postpone the pronouncement of final sentence and judgment upon such conditions as it shall deem proper and *385 reasonable as to probation of the person convicted. The second section gives the circuit court the power to revoke the suspension and postponement of sentence, and to pronounce sentence and enter final judgment in each cause whenever that course shall be deemed for the best interests of society and such convicted person. The statute itself does not confine the time within which the court may revoke the suspension of sentence.
In Ketchum v. Vansickle,
In the case at bar, the sentence was suspended during good behavior. It will be remembered that the statute gives the circuit court the power to postpone final sentence and judgment upon such condition as it shall deem proper and reasonable as to probation of the convicted person. The court had the right to impose this condition.
In Huyser v. Commonwealth,
In State v. Greer,
This would also result from our own decisions holding that a statute authorizing and empowering circuit courts to suspend sentences under certain conditions to be constitutional. It would seem that the language of the statute authorizing the suspension of the sentence and also giving the circuit judge the power to revoke the suspension of the sentence when that course shall be deemed for the best interest of society and for the convicted person, expressly conferred upon the circuit court the power to pass upon the question without the aid of a jury.
It cannot be said that the finding of the circuit court that the suspension of the sentence should be revoked was either unreasonable in itself or without evidence to support it. According to the testimony of the revenue officers, the still was found about 150 yards away from the house in which the defendant lived. It was close to a spring where he and another person who lived in the house with him got water for family use, and where their family washing was done. The cap and worm to the still were found in an outhouse nearby, which was locked up, *387 and two barrels of mash ready for distillation were also buried in the ground in the outhouse. When he was arrested, Denham stated to Otts that this meant the Tucker Farm (the penitentiary farm) for them. This was in the nature of a confession, and the circumstances surrounding the whole transaction showed that the defendant realized that he was at least guilty of having a still in his possession. This was a kindred crime to the one he had been convicted of, and warranted the court in setting aside or revoking the suspension of sentence.
Therefore, the judgment will be affirmed.