State v. Seagraves

145 S.E.2d 327 (1965)

266 N.C. 112

STATE v. Troy Benjamin SEAGRAVES.

No. 671.

Supreme Court of North Carolina.

December 15, 1965.

*329 Atty. Gen. T. W. Bruton and Staff Atty. Theodore C. Brown, Jr., Raleigh, for the State.

Max D. Ballinger, Greensboro, for defendant appellant.

PER CURIAM.

Upon a hearing to determine whether or not probation should be revoked, and a sentence previously suspended should be activated, all that is required is that the evidence be such as reasonably to satisfy the judge, in the exercise of his sound discretion, that the defendant has violated a valid condition upon which the sentence was so suspended. State v. Coffey, 255 N.C. 293, 121 S.E.2d 736; State v. Robinson, 248 N.C. 282, 103 S.E.2d 376; State v. Millner, 240 N.C. 602, 83 S.E.2d 546. However, the burden of proof is upon the State to show that the defendant has violated one of the conditions of his probation. "Where a sentence in a criminal case is suspended upon certain valid conditions expressed in the sentence imposed, the prisoner has a right to rely upon such conditions, and so long as he complies therewith the suspension should stand." State v. Robinson, supra. See also: State v. McBride, 240 N.C. 619, 83 S.E.2d 488.

The probation judgment did not make it a condition of the defendant's probation that he "follow the probation officer's instructions and advice," or that he refrain from having any weapon in his possession outside of his established residence or that he not go upon the premises of a tavern selling beer.

The record does not show the nature or ownership of the weapon carried by the defendant, who owned the automobile from which he removed it or the dwelling house into which he carried it, or any circumstance in connection therewith. It is not shown that the weapon, whatever it was, was concealed by the defendant or that the occupant of the dwelling house objected to his taking it into the house.

Similarly, the record does not show any of the circumstances under which the defendant was upon the premises of the tavern in question or what was the outcome of the issuance of the two Peace Warrants. It is not shown that this tavern was a place "of disreputable or harmful character." There is nothing in the record to show that in either of these matters the defendant was engaged in an "injurious or vicious habit," or that his conduct fell short of "general good behavior." In State v. Millner, supra, we said: "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."

The findings of the Superior Court do not, therefore, constitute grounds for the revocation of the defendant's probation and the activation of the sentence previously imposed and suspended. Consequently, the order must be vacated without prejudice to the power of the court below to activate the *330 suspended sentence if a violation of any condition thereof, during the period of probation, is reported to and found by the court.

Reversed.