Allen v. State , 78 Ga. App. 526 ( 1949 )

Although the trial court on a hearing for the revocation of probation has a wide discretion, and although only slight evidence will support a judgment of revocation, some evidence is required. In the instant case there is no evidence to support the contentions of the State that the defendant violated a traffic law on the occasion in question and the judgment of the trial court revoking the probation is therefore error.

DECIDED FEBRUARY 1, 1949. The plaintiff in error, A. D. Allen Jr., hereinafter referred to as the defendant, on July 27, 1948, entered a plea of guilty in the City Court of Athens to an accusation charging him with the offense of illegally possessing intoxicating liquors. He was sentenced to pay a fine of $1000, to serve 6 months in the Clarke County jail, and to work in the public-works-camp for a term of 12 months, the jail and public-works-camp sentence, after payment of the fine, to be served on probation until further order of the court. The fine was duly paid and the defendant entered upon the service of his probation sentence outside the confines of the institutions designated.

On October 8, 1948, the defendant was arrested on a rule issued by the Judge of the City Court of Athens directing him to show cause why his probation sentence should not be revoked.

On the hearing the evidence upon which the State relied for the revocation of the probation sentence, construing it in its light most favorable to the finding of the trial judge that the terms of the probation had been violated, the judge trying the case was authorized to find facts as follows: that on the night of October 7, 1948, the defendant driving a 1941 maroon Ford automobile, one George Posey driving a 1940 Ford coupe, and Aubrey Joe Allen, brother of the defendant, driving a 1939 green Ford Tudor were traveling along the highways north of Athens, and whether by previous arrangement or coincidence, were together at certain points including Toccoa and Cornelia; that all these parties lived in Athens; that on October 8 they drove through the town of Homer at 6:50 a. m. in a southerly direction toward Cornelia; that the three cars were approximately 150 yards apart at the time and being operated at a speed of 25 to 30 miles per hour; that a collision occurred at a point about 8 miles south of Homer between the car George Posey was driving and a car driven from the opposite direction at approximately 7 o'clock that morning, in which Posey was killed, and a man in the car with him and the man driving the other car in the collision were critically injured; that at various points between Homer and the scene of the collision, 3 cars of the description of the ones being driven by the defendant, his brother and Posey, through Homer, were racing at terrific speed far in excess of the lawful rate.

A. F. Jackson, a witness for the defendant, testified substantially: that he was in the car with the defendant about 6:45 or 7 o'clock on the morning of October 8, 1948; that the defendant drove up to the scene of the collision, passed between the wrecked automobiles, parked by the side of the highway and returned to the wrecked cars; that he did not know how long the wreck had happened before he and the defendant arrived but they were among the first ones there; that Aubrey Wade was in the car with them; that the defendant was driving the car as they passed through Homer; that shortly outside Homer, Aubrey Wade drove a distance of 4 or 5 miles to Clarence Haggard's grocery; that they stopped there to go to the rest room; that when they got ready to resume their journey the defendant drove until they reached the scene of the collision; and that at no point between Homer and the collision did the defendant or the car in which he was riding speed or engage in a race with the car Posey was driving or with any other car. The testimony of this witness was substantiated by Aubrey Wade, another witness for the defendant. Jack Wills, a witness for the defendant, testified that he was a Wild Life Ranger and that he was on the highway between Commerce and Homer checking on early morning dove shooting, and that he saw the defendant standing on the ground at Haggard's grocery and filling station; that on his way from Commerce to this point he met a black coupe traveling at a fast rate of speed; that at Haggard's place of business he saw besides the defendant one other person in the automobile. A number of witnesses for the defendant testified that he, upon reaching the scene of the collision, rendered all assistance possible to those who were injured.

At the conclusion of the evidence the trial court entered a judgment revoking the probation sentence and the same is here assigned as error. The original sentence of the court prescribed no rules for the conduct of the defendant and made no provision for him to report to any probation officer. The language of the sentence with reference to probation is as follows: "It is further ordered that upon payment of the $1000 fine the jail sentence and public works sentence be served on probation until further order of court."

Section 27-2705 of the Code provides as follows: "Every person placed on probation under the provision of this law shall, during the term of his release without the confines of the chain gang, jail or other place of detention, observe all rules prescribed for his conduct by the court, report to the probation officer as directed, and maintain a correct life. In case of failure to meet any of these requirements, and at any time prior to the final disposition of the case of any probationer in the custody of a probation officer, the officer may bring him without warrant before the court or the court may issue a warrant directing that he be arrested and brought before it. When such person is brought before the court, the court after due examination may revoke its leave to the probationer to serve his sentence outside the confines of the chain gang, jail or other place of detention."

Since the sentence of the court failed to specify any particular conduct, rules or requirements for the defendant, the conditions of the probation are therefore set forth in the foregoing quoted Code section, and the case must be determined on the issue of whether or not the evidence authorized the trial judge to find that the defendant had, by reason of these facts, failed to maintain a correct life. The evidence discloses nothing which would reflect moral or legal misconduct on the part of the defendant unless it discloses that the defendant was guilty of violating a traffic law. In determining this question the trial judge is not bound by the same rules of evidence as a jury in passing upon the guilt or innocence of the accused in the first instance. It is not necessary that the evidence support the finding beyond a reasonable doubt or even by a preponderance of the evidence. The judge is the trior of the facts. He has a very wide discretion. See Olsen v. State, 21 Ga. App. 795 (95 S.E. 269); Brown v. State, 71 Ga. App. 303 (30 S.E.2d 783). The evidence need only be sufficient to satisfy the judge that the defendant has violated the probation. In the instant case the evidence must be sufficient to satisfy the judge that the defendant violated a law in relation to the operation of the automobile on the occasion in question. There is no evidence to support this finding. It is a matter of common knowledge that there are thousands of automobiles on the highways of this country every moment that to the casual observer resemble each other. At most, evidence that 3 cars of the description of the defendant's car, that of his brother and that of Posey, were racing along the highway between Homer and the scene of the wreck, amounts to no more than a suspicion that the defendant was among those engaged in speeding and reckless driving. It utterly fails to constitute evidentiary facts in support of this contention. On the other hand there is the positive and unimpeached testimony of two witnesses riding with the defendant who support the defendant's statement to the effect that at no time did he engage in speeding or reckless driving anywhere between Homer and the scene of the collision. This testimony is corroborated by the testimony of the witness Wills, himself disinterested and unimpeached, to the effect that he saw the defendant standing near his car in front of Haggard's grocery between Homer and the scene of the wreck, and that a short time previously he had met a speeding car answering the description of the one being operated by Posey.

The statute guarantees to the probationer the right to due examination by the court before the probation sentence may be revoked. See Roberts v. Lowery, 160 Ga. 494 (2) (128 S.E. 746); Johnson v. Walls, 185 Ga. 177 (194 S.E. 380). Such due examination means that the probationer be given notice and an opportunity to be heard upon the question of whether he has, by his conduct, committed acts authorizing the court to revoke his probation. This right would indeed be rendered impotent if the court be permitted, after hearing the evidence, to revoke the probation on mere suspicion; especially where there is positive and uncontradicted testimony by unimpeached witnesses absolving the defendant of the slightest culpable conduct. If the rule were otherwise than as here expressed, there would be no occasion for such due examination.

Although the trial court on a hearing for the revocation of probation has wide discretion, and although only slight evidence will support a judgment of revocation, some evidence is required. In the instant case there is no evidence to support the contentions of the State that the defendant violated a traffic law on the occasion in question and the judgment of the trial court revoking the probation is therefore error.

Judgment reversed. MacIntyre, P. J., and Gardner, J., concur.