STATE
v.
Floyd MILLNER.
No. 2.
Supreme Court of North Carolina.
September 22, 1954.*547 Atty. Gen. Harry McMullan, Asst. Atty. Gen. Ralph Moody, and Gerald F. White, of Staff, Raleigh, for the State.
Brown, Scurry & McMichael, Reidsville, and Price & Osborne, Leaksville, for defendant appellant.
BARNHILL, Chief Justice.
The validity of the order of Clarkson, J., entered at the January Term, suspending or staying execution of the sentence of imprisonment imposed by him on condition that defendant "be of good behavior and violate none of the laws of the State during the period of suspension," is not challenged on this appeal. State v. Miller, 225 N.C. 213, 34 S.E.2d 143; State v. Jackson, 226 N.C. 66, 36 S.E.2d 706.
The term "good behavior" as used in the order means in obedience to and conformity with the laws of the State: the demeanor of a law-abiding citizen. State v. Johnson, 169 N.C. 311, 84 S.E. 767; State v. Everitt, 164 N.C. 399, 79 S.E. 274, 47 L.R.A., N.S., 848; State v. Pelley, 221 N. C. 487, 20 S.E.2d 850. Good behavior, by correct interpretation, means conduct that is authorized by law. State v. Hardin, 183 N.C. 815, 112 S.E. 593.
Behavior such as will warrant a finding that a defendant has breached the condition of suspension on good behavior must be conduct which constitutes a violation of some criminal law of the State. State v. Hardin, supra.
The discretionary authority of the trial judge to determine whether a suspended sentence shall be activated does not mean *548 that he can invoke the sentence and direct that capias and commitment issue without a finding, based on competent evidence, that the defendant in fact has been guilty of conduct which constitutes a violation of some criminal law. The breach of condition must be properly established by pertinent testimony that the conditions have been broken. State v. Hardin, supra. There must be substantial evidence of sufficient probative force to generate in the minds of reasonable men the conclusion that defendant has in fact breached the condition in question. In the absence of such proof, the defendant is entitled to his discharge as a matter of right and not of discretion.
We are constrained to hold that the evidence contained in this record, when considered in the light of these principles of law, is insufficient to sustain the findings or conclusions made by the court below.
It is true that the defendant has no occupation to the knowledge of the officers. But this alone is not sufficient to support a finding that defendant is a vagrant, especially in view of the positive evidence that he has a home and possesses ready cash. G.S. § 14-336.
There is no evidence that defendant has engaged in the sale of liquor. The evidence as to what the officers found upon making search of defendant's premises raises a strong suspicion and nothing more. It is true there was also evidence that a large number of people, both white and colored, went to defendant's home day and night. But the testimony also discloses that these people knocked, but did not enter. While at times they saw the defendant, they always departed empty handed. The officers never saw defendant pass any package to any of these visitors, nor did they see any of them pass any money or other object to him. There was no disorder and no disturbance. None of the visitors were apprehended by the watching officers, and defendant was guilty of no misbehavior or disturbance. So the officers testified.
Indeed, the testimony is such as to induce the inference that defendant's home had at one time been an oasis for the thirsty of that community, but that since January their oasis has been arid.
The defendant is entitled to his discharge subject to the original suspended sentence. To that end the judgment entered in the court below is
Reversed.