State v. Ray

DeviN, J.

The records of this Court disclose that the appellant was twice tried upon bills of indictment charging embezzlement, and that in each instance, upon appeal, a new trial was awarded.

(S. v. Ray, 206 N. C., 736 , 175 S. E., 109 ;

S. v. Ray, 207 N. C., 642 , 178 S. E., 224 .) Subsequently, it appears that at the August Term, 1935, the defendant, with the consent of the solicitor for the State, and the approval of the court, entered a'plea of guilty of forcible trespass, and that prayer for *750 judgment thereon was, upon certain conditions, continued to August Term, 1936. At the August Term, 1936, it was found by the court that these conditions had not been complied with, and thereupon sentence was imposed, with the provision, however, that the sentence be suspended upon substantially the same conditions as those previously named, that is that he make certain payments in September, 1936, and certain other payments on or before August Term, 1937. At August Term, 1937, it was found by the court that defendant had breached the conditions upon which the execution of the sentence had been suspended, and it was adjudged that the jail sentence imposed by the previous judgment be put into execution. To the last mentioned judgment, rendered at August Term, 1937, defendant excepted and appealed.

The power of the Superior Court to continue the prayer for judgment and to suspend the execution of a judgment, upon conditions, in proper cases and upon terms that are reasonable and just, and thereafter, upon determination that the conditions had been breached, to impose sentence and execute the judgment, has been upheld by this Court in numerous cases.

S. v. Hilton, 151 N. C., 687 , 65 S. E., 1011 ; S . v. Everitt, 164 N. C., 399 , 79 S. E., 274 ;

S. v. Burnett, 174 N. C., 796 , 93 S. E., 473 ;

S. v. Hardin, 183 N. C., 815 , 112 S. E., 593 ;

S. v. Shepherd, 187 N. C., 609 , 122 S. E., 467 ;

S. v. Edwards, 192 N. C., 321 , 135 S. E., 37 ;

Berman v. U. S., 82 Law Ed. (U. S.), 212.

The defendant, having pleaded guilty of a misdemeanor, and having consented, or, at least, offered no objection to the conditions upon which the prayer for judgment was continued, in the one instance, and the execution, of sentence suspended in the other, is in no position now to complain.

S. v. Crook, 115 N. C., 760 , 20 S. E., 513 .

The defendant’s motion in arrest of judgment, on account of defect in the bill of indictment for embezzlement, cannot be sustained, since he was neither tried nor sentenced under that bill nor for that offense. He entered a plea of guilty of a misdemeanor and this plea was accepted by the State and approved by the court, and it was upon this voluntary plea that the judgment appealed from was based. The defendant was represented by counsel and it is presumed that his rights were protected.

Nor can the defendant complain of the revocation of his license to practice law. It was found by the court that this was done with the defendant’s consent.

Upon a careful consideration of the record, we conclude that the judgment must be Affirmed.