STATE
v.
DOUGHTIE.
No. 73.
Supreme Court of North Carolina.
March 18, 1953.*923 Harry McMullan, Atty. Gen. and T. W. Bruton, Asst. Atty. Gen., Gerald F. White, Member of Staff, Raleigh, for the state.
Cameron S. Weeks and T. Chandler Muse, Tarboro, for the defendant, appellant.
PARKER, Justice.
In North Carolina a court has no power to pass a sentence of banishment; and if it does so, the sentence is void. This is the general rule in American Courts. State v. Hatley, 110 N.C. 522, 14 S.E. 751.
"In the states of the United States, a sentence banishing one convicted of crime from the state is generally held to be beyond the power of the court. It is impliedly prohibited by public policy." 15 Am.Jur., Criminal Law, Sec. 453. To the same effect People v. Baum, 251 Mich. 187, 231 N.W. 95, 70 A.L.R. 98; State v. Baker, 58 S.C. 111, 36 S.E. 501. See also People v. Lopez, 81 Cal. App. 199, 253 P. 169.
"In the absence of statutory authorization, banishment and deportation of accused is not proper punishment." 24 C. J.S. Criminal Law, § 1991.
In People v. Baum, supra [251 Mich. 187, 231 N.W. 96], the sentence was a fine of $500 and $500 costs. In addition, defendant "must leave the state of Michigan within 30 days and not return for a period of probation" which was fixed at five years. The court held the sentence erroneous and remanded it for a legal sentence.
In State v. Baker, supra [58 S.C. 111, 36 S.E. 502], the sentence was 7 years in prison; "after you have served five years, you will be released, with the understanding that you leave the state, and never set foot in it again. If you do return, after notice on you by the state and a cause shown, you will be called back to serve out the full term [etc.]" The judgment of the circuit court was reversed, and the case remanded for re-sentence.
In People v. Lopez, supra [81 Cal. App. 199, 253 P. 170], the sentence was that after the defendant had served the term imposed, he should be deported to Mexico. The court modified the judgment by striking out "after sentence has been served, defendant is to be deported to Mexico", and after such modification the judgment was affirmed.
The sentence given the defendant Doughtie is not a sentence of banishment. It is a road sentence of two years suspended on condition that the defendant leave North Carolina and be out of same not later than 12:00 Noon 19 October 1951, and not return or enter into the state for two years, and upon the defendant entering into any part of the state, capias and commitment to issue to any and all counties within said state.
This question of law is presented for our decision: Is a two year road sentence suspended on condition that the defendant leave North Carolina, and remain out of the state for two years valid?
In State v. Hatley, supra, the sentence was: "That the defendants * * * be imprisoned for twelve months in the county jail, but, if the defendants leave the state in thirty days, no capias to issue; otherwise capias to issue, and defendants to be imprisoned for twelve months each." The court holding that the judgment of the court cannot be fairly construed as a judgment of banishment said: "The only judgment passed by the court was that the defendants be imprisoned 12 months, and the words, `but if the defendants leave,' etc., constitute no part of the sentence or judgment of the court, but were manifestly intended only as a note or memorandum directing the clerk to postpone the period at which the sentence shall go into execution, and not as a punishment for the defendants, or an infliction upon some other community [etc.]" A similar case is In re Hinson, 156 N.C. 250, 72 S.E. 310, 36 *924 L.R.A.,N.S., 352. Neither decide the question of law presented in the instant case.
In State v. McAfee, 189 N.C. 320, 127 S.E. 204, the sentence was: "It is adjudged by the court that the defendant, Mrs. T. E. McAfee, be confined in the common jail of Lenoir county for a term of 15 months execution of sentence suspended upon payment of costs for 30 days; if thereafter the defendant be found within the state of North Carolina, capias shall issue to the sheriff of Lenoir or to any other county in the state, at the discretion of the solicitor, and upon apprehension the defendant shall be committed to serve the sentence imposed." There is no suspension of the jail sentence on condition that the defendant leave the state, and manifestly this case is not a precedent for the question of law for us to decide. Mrs. McAfee was before this court again in State v. McAfee, 198 N.C. 509, 152 S.E. 393, and the sentence from which she appealed set forth in State v. McAfee, 189 N.C. 320, 127 S.E. 204, supra, was put into effect.
The common law courts of criminal jurisdiction undoubtedly had power to suspend judgment on a defendant for some special purpose or for some reasonable time. In modern times this power has been extensively exercised by trial judges of courts of general criminal jurisdiction desiring to show mercy and to reform offenders, particularly youthful ones. Such exercise of power has been generally upheld by appellate courts as favorable to the defendant, and as sound public policy. State v. Hilton, 151 N.C. 687, 65 S.E. 1011; State v. Jackson, 226 N.C. 66, 36 S.E.2d 706, which cites numerous cases; 15 Am.Jur., Criminal Law, Sec. 479. Upon this foundation is based our probation system which has had marked success in many cases in restoring youthful offenders to society as law abiding citizens.
A sentence of banishment is undoubtedly void. A sentence of two years on the roads suspended on condition that the defendant leave the State of North Carolina and not return or enter into the state for two years is in all practical effect a sentence of banishment or exile for two years. It gives the defendant no opportunity to avoid serving the road sentence except by exile. It is not favorable to him to force him to go for two years into another state, where the State of North Carolina can exercise no restraining influence upon him for purposes of reformation. Through the ages the lot of the exile has been hard. There comes ringing down the centuries the words of the Psalmist: "By the rivers of Babylon, there we sat down, yea, we wept, when we remembered Zion." It is not sound public policy to make other states a dumping ground for our criminals. In many cases this court has sustained the suspension of sentences on condition that the defendant remain for a fixed period of time of good behaviour, pay a certain sum of money, etc.; conditions which were favorable to the defendant, permitting him if he obeyed the conditions to avoid serving the sentence, and in furtherance of sound public policy. State v. Hilton, supra; State v. Pelley, 221 N.C. 487, 20 S.E.2d 850; State v. Miller, 225 N.C. 213, 34 S.E.2d 143; State v. Graham, 225 N.C. 217, 34 S.E.2d 146; State v. Jackson, supra; State v. Simmington, 235 N.C. 612, 70 S.E.2d 842.
In State v. Stallings, 234 N.C. 265, 66 S.E.2d 822, 824, Chief Justice Devin speaking for the court said: "The power of a court, in proper case, to suspend judgment on conviction of a criminal offense for a reasonable length of time, conditioned upon continued obedience to the law, is well recognized in this jurisdiction, and frequently exercised in order to carry out the more humane concept of the purpose of punishment for crime."
We therefore conclude that the two-year road sentence suspended on condition that the defendant Doughtie leave the State of North Carolina and not return or enter into the State for two years, with capias and commitment to issue if he does return, is not within the letter or spirit of our decisions affirming the validity of suspended sentences, is not favorable to the defendant, nor sound public policy, nor consistent with the proper punishment for crime. Such a sentence was beyond the power of the court to inflict.
*925 "The suspension or reduction of a sentence on condition that the convicted person leave the state * * * is void." 15 Am.Jur., Criminal Law, Sec. 453.
The defendant pleaded guilty. Where there is an erroneous sentence, the case will be remanded for a proper sentence. State v. Lawrence, 81 N.C. 522; State v. Perkins, 82 N.C. 681; In re Deaton, 105 N.C. 59, 11 S.E. 244; State v. Walker, 179 N.C. 730, 102 S.E. 404; State v. Satterwhite, 182 N.C. 892, 109 S.E. 862; State v. Phillips, 185 N.C. 614, 115 S.E. 893; State v. Kelly, 206 N.C. 660, 175 S.E. 294; State v. Calcutt, 219 N.C. 545, 15 S.E.2d 9; State v. Gregory, 223 N.C. 415, 27 S.E.2d 140; State v. Robinson, 224 N.C. 412, 30 S.E.2d 320.
The sentence passed against the defendant at the October Criminal Term 1951 of the Superior Court of Edgecombe County is reversed, and vacated, and the judgment or order putting said road sentence into effect is reversed, and vacated. The defendant's only assignment of error to the signing of the judgment is sustained.
It is ordered that the case be remanded to the Superior Court of Edgecombe County for a proper sentence.
Error and remanded.