STATE
v.
Inez GUFFEY.
No. 2.
Supreme Court of North Carolina.
September 21, 1960.*150 T. W. Bruton, Atty. Gen., Harry W. McGalliard, Asst. Atty. Gen., for the State.
Thomas J. Moss, Forest City, Stover P. Dunagan, Rutherfordton, for defendant.
DENNY, Justice.
There is no contention that the defendant violated the terms upon which her sentence was suspended on 2 January 1959 in any respect, except in connection with the charge that on 16 June 1959 she had in her possession a quantity of nontaxpaid liquor for the purpose of sale.
It is the general rule that when judgment is suspended in a criminal action upon good behavior or other conditions, the proceedings to ascertain whether or not the conditions have been violated are addressed to the sound discretion of the judge and do not come within the jury's province. The findings of the judge, if supported by competent evidence, and his judgment based thereon are not reviewable on appeal, unless there is a manifest abuse of discretion State v. Pelley, 221 N.C. 487, 20 S.E.2d 850; State v. Hoggard, 180 N.C. 678, 103 S.E. 891; State v. Everitt, 164 N.C. 399, 79 S.E. 274, 47 L.R.A.,N.S., 848
There is an exception, however, to the above rule, pointed out by Hoke, J. in State v. Hardin, 183 N.C. 815, 112 S.E. 593, 594, which is, "* * * where it is properly made to appear that a defendant has been acquitted by the jury or other competent tribunal having jurisdiction of the criminal offense which is the sole basis of the proceedings. As to that fact and to that extent the court or judge hearing the matter of the suspended judgment should be concluded."
In our opinion, when a criminal charge is pending in a court of competent jurisdiction, which charge is the sole basis for activating a previously suspended sentence, such sentence should not be activated unless there is a conviction on the pending charge or there is a plea of guilty entered thereto. Consequently, when the defendant appealed from the order entered in the Recorder's Court activating the suspended sentence and also appealed from the conviction in said court, which conviction was the sole basis for activating the suspended sentence, the hearing on the appeal from the order activating the suspended sentence should not have been heard until the defendant *151 was tried on the criminal charge. Such procedure would give a defendant an opportunity to have his conviction, if convicted, and the matters with respect to the activation of a suspended sentence reviewed in a single appeal. In the instant case, the State says and contends this defendant is bound by Judge Thompson's order because she did not perfect her appeal therefrom to this Court. Be that as it may, it is difficult to see what relief this Court could have granted her if she had perfected her appeal while the appeal from the conviction in the Recorder's Court was still pending in the Superior Court.
The facts in the present case are distinguishable from those in the case of State v. Greer, 173 N.C. 759, 92 S.E. 147. In the Greer case, grounds for activating the suspended sentence in the Municipal Court of Winston were based on certain findings of fact and not on the conviction in that court. In the present case, while Judge Thompson heard the appeal from the order entered in the Recorder's Court activating the suspended sentence previously entered therein and found certain facts, he did not enter an independent judgment, based thereon, activating the suspended sentence, but merely affirmed the order entered in the Recorder's Court. State v. Thompson, 244 N.C. 282, 93 S.E.2d 158. The order in the Recorder's Court was predicated upon the fact that the defendant was convicted on 10 August 1959 of possessing intoxicating beverages on 16 June 1959 for the purpose of sale, in violation of the terms and conditions of the suspended sentence. When this Court determined that the evidence upon which the defendant was found guilty in the Superior Court at the November Term 1959, of possessing nontaxpaid liquor on 16 June 1959 for the purpose of sale, was insufficient to support the jury's verdict, the conviction upon which the Recorder's Court based its order activating the suspended sentence no longer existed. State v. Perryman, 216 N.C. 30, 3 S.E.2d 285; State v. Harrelson, 245 N.C. 604, 96 S.E.2d 867; State v. Glenn, 251 N.C. 160, 110 S.E.2d 794.
In light of the facts disclosed by the record herein, and our decision in this case on the former appeal, State v. Guffey, 252 N.C. 60, 112 S.E.2d 734, to allow the defendant to be imprisoned when the record fails to show that she has in any way breached the conditions upon which the sentence entered on 2 January 1959 was suspended, cannot be justified either in law or equity.
The judgment of the court below is
Affirmed.