People v. Myers ( 1943 )

The conclusion of Mr. Justice SHARPE that the trial judge was in error in revoking probation of appellant and thereupon imposing sentence is not one in which I can concur. From the record, it is obvious that the trial judge was thoroughly and reliably advised of all the facts and circumstances, in consequence of which he revoked appellant's probation and passed sentence. Justice SHARPE rightly affirms defendant's conviction. The obvious result of vacating the sentence and the order revoking probation will merely be a reappearance of defendant before the trial court and a re-entry of the same orders, supplemented by a somewhat more detailed record of the facts and circumstances which abundantly justified the disposition already made of appellant's case by the trial judge. In short, the record discloses no prejudicial error.

No claim is made that appellant was not brought before the trial court charged informally with violation of the conditions of his five-year probation which the court had ordered four months earlier. Instead, appellant's contention is that he did not have a "hearing" before the trial court at the time his probation was revoked. The statute in part provides:

"All probation orders shall be revocable and terminable aftersummary hearing for any violation by the probationer of any of the conditions of his probation. * * * In case such probation order is terminated and revoked, the court may proceed to sentence such probationer in the same manner and to the same penalty as it might have done if such probation order had never been made." 3 Comp. Laws 1929, 17374 (Stat. Ann. § 28.1134.)

As to whether defendant had a "summary hearing" at the time he was brought before the trial judge charged with violation of his probation, and immediately following which sentence was imposed, the record discloses the following took place:

"The Court: Roger Myers, have you anything to say now why the court should not set aside the order entered on November 21, 1941, putting you on probation for five years for statutory rape?

"Defendant: I am not guilty, sir.

"The Court: You are not guilty?

"Defendant: No, sir.

"Mr. Crossley (counsel for defendant): * * * There are certain circumstances which I would like to call to your honor's attention. It seems, your honor, that this man was put on probation. * * * I didn't have the file before me. Now there is a second charge.

"The Court: Statutory rape on a 15-year-old girl, the mother telling him her age and he went up to the house and took her out in spite of the mother.

"Mr. Crossley: Now, it has been intimated rather strongly to our office that there is doubt as to his guilt of this second crime. I only want to bring to your honor's attention this, and then go; and it seems to me he ought to be given a trial. * * * "The Court: The young man standing at your right this afternoon, Mr. Crossley, knows just exactly the conditions (of probation).

"Q. Well, you remember our talk, Roger, on November 21st, the day I sentenced Dubey to Jackson prison for 10 to 20 years; you remember that?

"The Defendant: Yes, sir. * * *

"The Court: This is not for the record because it has already been taken down, but I am going to read it to you again.

(The Court reads the record of the previous sentence of November 21, 1941.)

"The Defendant: I haven't failed you.

"The Court: You are here. I even permitted you to go and marry a girl that you got into trouble before you raped this girl out on Plymouth highway; I even set that aside after I found it out; I didn't know it at the time or that might have affected my putting you on probation. But I let you marry that little girl, to give her a name and a name to her baby, to which she is now struggling to give life out at the Salvation Army hospital. And what do you do? You go up to this 15-year-old girl's home, and in spite of the protests of her mother, you take her to the apartment at the corner of Fifteenth and Lafayette and have intercourse with her there, while the girl you gave your name to — what did you say in the prosecuting attorney's office about your own wife?

"I paid my respects to Dubey during the course of that trial; I thought I was making a mistake. I watched you and I thought you were either a very smart young man or you had been a victim of bad companionship which would entitle you to the consideration of the court and every attache of the court. I thought you were an honest boy; I gave you the benefit of the doubt. I made a mistake; you haven't done a day's work since I put you on probation.

"The Defendant: I had a job for today.

"The Court: It wasn't the kind of work that is worthwhile. There is no use going over it. I told you I would keep my promise. The order of the court placing you on probation, which of course had as one of its provisions that you would never violate a law or an ordinance, will be set aside."

It seems to me that the above appearance before the court of defendant, represented by counsel, was a substantial compliance with the statutory requirement of a "summary hearing" incident to revocation of probation. In the first instance, probation is wholly discretionary with the trial judge. People v. Fisher,237 Mich. 504. And in making his determination the trial judge is not bound to act only upon a record of testimony taken in the usual formal manner. Instead, he may rightfully consider reports of probation officers and other information of like reliable character. People v. Williams, 225 Mich. 133. And since the statute pertinent to revocation of probation does not require a formal hearing, but instead only a "summary hearing" it should be held that the proceeding incident to revocation is of the same type as the proceeding contemplated by the statute in placing a convicted person on probation in the first instance. The statute governing probation and revocation thereof does not contemplate a second trial of the accused.

In the instant case an able and painstaking trial judge has disposed of the question under consideration in substantial compliance with the statutory requirement, as is disclosed by the record when fairly construed. Notwithstanding appellant's contention to the contrary, his probation was not terminated in violation of the procedural requirements of the statute, nor was he thereby deprived of his right to due process of law in violation of either the State or Federal constitutional provisions. The conviction, the order revoking defendant's probation, and the sentence imposed should be affirmed.

BUTZEL, J., concurred with NORTH, J.