Appellant was charged with the crime of assault and battery with intent to commit a felony. He entered a plea of guilty on October 24, 1960. On December 2, 1960, the trial court sentenced him to two to fourteen years in the State Reformatory, suspending sentence and placing him on probation. On December *370 28, 1961, a petition to revokе the suspended sentence was filed by the Probation Officer of Hamilton County, asserting that appellant had viоlated the terms of probation, namely, that he had used intoxicants and had failed to remain at liberty without violating the law. On June 15, 1962, the Hamilton Circuit Court heard evidence on this petition both for the State and on behalf of aрpellant, who testified on his own behalf. The court entered a finding that appellant had violated Item 3 of thе “Terms of Probation,” which was the use of intoxicants, and revoked the probation and the suspended sentence.
In the decree revoking the probation, appellant was ordered to be confined in accordance with the prior sentence of December 2, 1960, and the confinement was to be a continuatiоn of that sentence rather than the commencement of a new sentence. In other words, appellant was to be credited for time served beginning as of December 2,1960.
From this order, appellant filed what was purported to be a motion for new trial, which the court overruled. On October 10, 1962, he filed a transcript of the rеcord and assignment of errors with the Clerk of this Court, assigning as the sole error the overruling of the purported motiоn for new trial. On December 7,1962, his brief was filed.
: Appellee has filed a motion to dismiss the appeal or affirm thе judgment, based principally upon the ground that appellant has not appealed from a final judgment; thаt therefore this court is without jurisdiction to hear the appeal.
The entry by the Hamilton Circuit Court, from which apрellant claims to take his appeal, reads in part as follows:
*371 “IT IS THEREFORE CONSIDERED, ORDERED, ADJUDGED AND DECREED that the probation and suspended sеntence of the defendant be and they hereby are revoked and the defendant is ordered confined in accordance with the prior sentence of 2 December 1960, . . .
In the Argument section of this brief, appellant takes it for granted that a decision and final judgment of the court was entered, for he argues the sufficiency оf the evidence and that the finding and “judgment” is contrary to law.
We agree with appellee that the findings and deсision of the trial court, although in the style and form of a judgment, do not constitute a final judgment from which appellаnt may appeal.
It has been said that the suspension of sentence or probation comes as a privilege or act of grace, and cannot be demanded as a matter of right, and the granting or refusal of such suspension or probation rests within the sound discretion of the court. 24 C.J.S., Criminal Law, §1618(5), p. 879;
Rode
v.
Baird, Sheriff
(1925),
In
Burns
v.
United States
(1932),
*372 “It should be borne in mind in dealing with the question of probation and violation thereof, that the extending of probation to a person convicted of crime is рurely a matter of grace, and that the revocation thereof is merely a withdrawal of the leniency sо extended. The term of imprisonment which follows the revocation of probation is for the commission of thе offense with which the probationer stands convicted, and is not in any sense a punishment for the violation of the terms of the probation. . . . Should the coui’ts under such circumstances attach conditions and restrictions to the power of the trial judge? The whole theory of probation is that of giving to the convicted person an opportunity for reformation, and, when it is manifest that the probationer is not taking. advantage of the opportunity given him, probation should be revoked, and the appropriate sentence for the crime theretofore committed should be imposed or executed.”
Appellant’s sentence began to run upon еntry of the judgment of conviction, even though he was permitted to be at liberty on parole. The suspension of sentence at that time did not suspend the operation of the judgment. Rode v. Baird, Sheriff, supra. This was recognized by the court when it revоked the suspension. After the hearing, the court’s order of revocation was one which revoked the suspеnsion of the execution of the judgment of December 2, 1960, and did not of itself constitute a new judgment. See 24 C.J.S., Criminal Law, §1618(11), р. 904.
One of the terms of appellant’s probation was that he not use intoxicants. The court found that he had viоlated this condition. From the evidence presented, the court did not abuse its discretion in revoking the probation, nor did it deprive defendant of any of his fundamental rights. It merely ordered the previous judgment to be executеd and that appellant be confined in accordance therewith to *373 serve his sentence, less any credits to which he was entitled.
There being no final judgment in this matter from which appellant may appeal, no question is presented to this court.
Desho
v.
State
(1957),
Appeal dismissed.
Achor, Arterburn, Jackson and Landis, JJ., concur.
Note. — Reported in