State v. Butcher , 10 N.C. App. 93 ( 1970 )

177 S.E.2d 924 (1970) 10 N.C. App. 93

STATE of North Carolina
v.
Lawrence BUTCHER.

No. 706SC477.

Court of Appeals of North Carolina.

December 16, 1970.

Atty. Gen. Robert Morgan, by Staff Atty. William Lewis Sauls, Raleigh, for the State.

Bruce C. Johnson, Johnson, Johnson & Johnson, Conway, for defendant appellant.

GRAHAM, Judge.

Defendant's first assignment of error encompasses numerous exceptions taken to questions propounded by the court to witnesses during the hearing. In support of this contention, he has cited numerous cases holding that a judge may not express an opinion on the evidence through the propounding of questions to witnesses. However, all of the cases relied upon by defendant involve comments made by the court in the presence of a jury and in violation of the provisions of G.S. § 1-180. The provisions of G.S. § 1-180 prohibiting a court from giving an opinion on the evidence in the presence of the jury are obviously not applicable in a hearing where no jury is present. The question of whether a condition of probation has been violated is always for the court and not for a jury. G.S. § 15-200; State v. Hewett, 270 N.C. 348, 154 S.E.2d 476; State v. Coffey, 255 N.C. 293, 121 S.E.2d 736; State v. Robinson, 248 N.C. 282, 103 S.E.2d 376.

In State v. Hewett, supra, 270 N.C. at p. 353, 154 S.E.2d at p. 479, we find the following:

"A proceeding to revoke probation is not a criminal prosecution, and we have no statute in this State requiring a formal trial in such a proceeding. Proceedings to revoke probation are often regarded as informal or summary. The courts of this State recognize the principle that a defendant on probation or a defendant under a suspended sentence, before any sentence of imprisonment is put into effect and activated, shall be given notice in writing of the hearing in apt time and an opportunity to be heard. State v. Duncan, [270] N.C., [241,] 154 S.E.2d 53, and cases cited. Upon a hearing of this character, the court is not bound by strict rules of evidence, and the alleged violation of a valid condition of probation need not be proven beyond a reasonable doubt. State v. Robinson, supra; State v. Morton, 252 N.C. 482, 114 S.E.2d 115; State v. Brown, 253 N.C. 195, 116 S.E.2d 349; Supplement to 1 Strong's N.C. Index, Criminal Law, § 136."

The questions asked by the court constitute, in our opinion, a legitimate inquiry into the facts alleged in the report of the probation officer. Defendant's assignment of error with respect thereto is overruled.

Defendant next attacks various findings made by the court and contends that the evidence failed to show and the court failed to find that defendant's breach of his probationary condition was willful. The court found and concluded that the breach of the probationary condition by defendant was without lawful excuse. This is sufficient to support the activation of the suspended sentence. "All that is required in a hearing of this character is that the evidence be such as to reasonably satisfy the judge in the exercise of his sound discretion that the defendant has willfully violated a valid condition of probation or that the defendant has violated without lawful excuse a valid condition upon which the sentence was suspended." (Emphasis added.) State v. Hewett, supra.

Evidence that defendant failed to make the payments ordered as a condition of his probation was not controverted. However, defendant sought to excuse this breach on the grounds that he had been unable to work regularly due to an injury and inability to find work; that he had paid some of his personal hospital bills; that he had voluntarily paid support money to the mother of his five-year-old illegitimate child; and that he had paid expenses in connection with a second illegitimate child born almost eleven months after the probation judgment was entered. The court, in its findings, gave defendant the benefit of all of the voluntary expenditures which he testified that he had made. However, the court also found that defendant had earnings available over and above these expenses which he could have paid into the clerk's office as ordered. The evidence supports these findings which in turn support the conclusion that the violation was without lawful excuse.

Moreover, it was not encumbent upon the trial court to regard as a "lawful excuse" for failure to comply, defendant's voluntary payments of other expenses in lieu of those which he was under court order to pay. Whether, under the circumstances, defendant was justified in paying his own hospital bill while ignoring the payments ordered by the court, which included a hospital bill presumably incurred by the victim of defendant's assault, was a matter for the trial court to decide in its discretion. The same is true with respect to defendant's other payments, particularly those arising out of the birth of an illegitimate child obviously conceived after the probationary judgment was entered.

We have carefully reviewed all of defendant's exceptions and assignments of error and conclude that no prejudicial error has been made to appear.

No error.

MALLARD, C. J., and PARKER, J., concur.