(dissenting). The statute (section 5075, Code 1915) authorizing the court in its discretion to suspend any sentence, upon such conditions as it may impose, is a salutary one, evidently designed to enable trial courts to use this coercive measure to effect reformation, and I consider the rule announced in the majority opinion one which will go far to destroy the purpose or object sought to be accomplished by this law. As I construe the majority opinion, it will be necessary in all cases of suspended sentence, at least where the sentence is suspended during good behavior, for the court to undertake to establish that the defendant has committed a violation of some law, and, in my judgment, this construction is contrary to the general principle which has been held to apply in cases of suspended sentences, where, as a rule, the defendant is called upon to show cause why the sentence should not be invoked against him by reason of his breach of the condition imposed upon him at the time the sentence was suspended. In this particular case the defendant pleaded guilty, and was sentenced for violation of the gambling statute. He was subsequently indicted for violation of the same statute, and is cited to show cause why the former .sentence should not be imposed upon him.
It is my opinion that the record is clear that he was not only engaged in the gambling game which was being conducted for money, but he was, at least for a portion of the time, occupying the position of dealer and having charge of the take-off. It may be that because it does not clearly appear that he was making a profit by reason of his position in this respect, that a violation of the gambling law was not shown. This construction, however, gives to him the benefit of presumptions which I do not consider he is entitled to under the circumstances. Such contention, moreover, would seem to call for a trial and conviction, of more or less former character, upon the second charge.
“We said in the case of Ex parte Bates, 20 N. M. 542, 151 Pac. 698, L. R. A. 1916A, 1285:
"It is our conclusion, however, that the district court was not determining, by its inquiry, whether or not the second offense had been committed, for the purpose of a trial as to that offense within the purview of legal procedure; but the inquiry was solely for the purpose of determining whether or not the condition imposed as a part of the first judgment had, as a matter of fact, been breached, and the commitment clearly indicates that its issuance was directed as a result of the breach of the condition of the judgment formerly entered. We do not consider that any new power was vested in the courts of this state by the statute in question, or that any of the established rules of criminal procedure have been abolished, and, having held that it was within the power of the district court to make the order of suspension under the conditions and circumstances pointed out, it must necessarily follow that the court, having the power to make the order, necessarily possessed the power, upon a violation of the order, to set aside the' same and commit the defendant.”
In the Bates case we were passing upon the statute in question, and, in my opinion, we were laying down a salutary rule which should be applied in this case. I believe that the court having the power to make the order of suspension, necessarily possess the power, upon a violation of that order, to set the same aside without being required to establish a violation of any .other criminal statute by the defendant; and that the definition of “good behavior,” as announced in the majority opinion, is therefore limiting the rule unnecessarily to the destruction of the beneficial object sought, to be accomplished by the statute authorizing the court to suspend sentence upon conditions imposed. I am not prepared to assume, as it would seem to me the majority opinion does assume, that the rights of convicted persons must be safeguarded by a definition of the term “good behavior,” announced by this court. I believe that the trial courts can be safely trusted to exercise a wise and beneficent discretion in its conduct of affairs of this kind; and, while we must rely upon á government of law, we must depend upon men, as judges, to exercise reasonable discretion in the enforcement of the law.
In the case of State v. Everitt, 164 N. C. 399, 79 S. E. 274, 47 L. R. A. (N. S.) 848, the Supreme Court of North Carolina, in passing upon a similar question, said:
“It must be clear that the defendant was not entitled to a jury trial to determine whether or not he had violated the conditions upon which the judgment had been suspended. He'was not on trial for any new offense, nor for any offense whatever. When the judgment was suspended the defendant assumed the obligation of showing to the satisfaction of the court, from time to time, that he had demeaned himself as a good’ citizen and was worthy of judicial clemency. Whether or not he had so demeaned himself was not an issue of fact to be submitted to a jury, but a question of law to be passed upon by the court. It was a matter to be determined by the sound discretion of the court, and the exercise of that discretion, in the absence of gross abuse, cannot be reviewed here.”
It is my opinion that the discretion referred to by the Supreme Court of North Carolina is sufficient protection of tbe defendant, and, believing tba.t in the case at bar there is no evidence of abuse of discretion on the part of the trial court, I believe that the majority opinion is erroneous, and therefore dissent therefrom.