109 S.W.2d 926 | Ark. | 1937
Appellant was indicted on a charge of grand larceny in July, 1933, and thereafter, on July 17, 1934, entered his plea of guilty to said indictment, at which time the court made this order: "Whereupon, the court doth order that the judgment rendered herein be and the same is hereby suspended during good behavior and payment of the court costs in this suit, the court retaining jurisdiction for all purposes until the next term of this court." Appellant was then discharged and no further action was taken against him until July 19, 1937, at which time the prosecuting attorney filed a petition praying that the suspended sentence be set aside and the defendant be sentenced to the penitentiary. There was a hearing on this motion and, on July 20, 1937, the court granted the prayer of the motion, set aside the suspended sentence, and sentenced appellant to the penitentiary. This appeal is from that judgment.
Appellant assigns three reasons or grounds for a reversal of this judgment. The first is that the court, having imposed the limitation in the order of July, 1934, in which he suspended the sentence, that is, "the court retaining jurisdiction for all purposes until the next term of court," is now without jurisdiction to change, alter or modify said order because the next term of court has elapsed. The second ground is that the testimony *838 offered on behalf of the state failed to show that appellant violated the conditions of said order, even on the question of good behavior. The third ground is that the decision of the court was based upon hearsay and neighborhood rumor, and to deprive one of his liberty on neighborhood rumor would set a dangerous precedent.
Appellant's first contention is based upon language used in Hartley v. State,
Section 4053 of Pope's Digest confers authority on circuit courts in criminal cases, "if he shall deem it best for the defendant and not harmful to society, to postpone the pronouncement of final sentence and judgment upon such conditions as he shall deem proper and reasonable as to probation of the person convicted, the restitution of the property involved, and the payment of the costs of the case." Section 4054 reads as follows: "Such judge shall have power, at any time the court may be in session, to revoke the suspension and postponement mentioned in 4053, and to pronounce sentence and enter final judgment in such cause whenever that course shall be deemed for the best interests of society and such convicted person." Section 4055 provides for the collection of costs whether the sentence be suspended or not. It will be noticed that by 4054 the court has the power at any time that it is in session to revoke the suspension of sentence, and to pronounce sentence and enter final judgment, "whenever that course shall be deemed for the best interests of society and such convicted person." So the court had power to *839
revoke the suspended sentence at any time the court was in session. The fact that the court made an order, retaining jurisdiction for all purposes until the next term of court, could not have the effect of abrogating the statute and thereafter depriving the court of the jurisdiction conferred upon it by the statute. That language in the order must be treated as surplusage. In Denham v. State,
The next two grounds urged for a reversal may be considered together as they both challenge the sufficiency of the evidence to sustain the order of revocation. This is a matter coming within the sound discretion of the trial court, Denham v. State, supra. Of course, such discretion could not be arbitrarily exercised without any basis in fact, but the statute itself confers the authority to revoke the suspension of sentence "whenever that course shall be deemed for the best interests of society and such convicted person." Here, the evidence was sufficient to justify the court in exercising the discretion it did as the evidence on the part *840 of the state was to the effect that appellant was drunk, was cursing in a public place, and had a fight with one Jack Fulmer. The statute does not provide how the court shall proceed in determining the necessity for the revocation of the suspended sentence. The trial court made a finding in which he recited that, in 1935, there had been a hearing before him of complaints by a number of citizens, asking for the revocation of appellant's suspended sentence, but that on account of the youth of appellant, he gave him another chance and warned him that he would be watched by persons of the court's choosing, and if his conduct was not as it should be, he would be brought back into court and sentenced; that there had been other complaints against him for the excessive use of alcoholic liquors and that the grand jury had indicted him for the crime of assault with intent to kill.
Under these conditions, we are of the opinion that the court was fully justified, and that its judgment should be affirmed.