Galyon v. State , 25 Beeler 505 ( 1949 )

Me. Justice BurNett

delivered the opinion of the Court.

By this appeal Calyon complained of the action of the Criminal Judge of Knox County in revoking a parole previously granted by him and sentencing Calyon to undergo confinement for the original term to which he had been previously sentenced.

In February 1948, the plaintiff in error plead guilty to an attempt to commit forgery, and was sentenced to the state prison for a period of not more than five years, nor less than one year, but upon his application the plaintiff in error was granted a parole by the Criminal Judge of Knox County.

In November 1948, a petition was filed by the District Attorney Ceneral charging the plaintiff in error with violation of his parole, and praying for a revocation thereof. Upon this a citation was duly issued, and in May 1949, the trial judge revoked the parole. The citation charged the plaintiff in error with participation in a robbery and also with conduct inconsistent with good citizenship. The trial judge found “that since his parole, the defendant has violated the law, has failed to make regular reports to the parole officer as required and by associating with law violators, laying around bootlegging establishments and other questionable places, drinking whisky and has been guilty of conduct inconsistent with good citizenship, . . . . ”

The parole was granted by the trial judge in the first instance pursuant to authority as set forth in Code, Section 11802.1. The suspension of the parole was in pursuance to Code, Section 11802.3 with the required notice being given the plaintiff in error prior to a hearing. A hearing was had in due course and evidence .introduced. This evidence unquestionably warranted the trial judge in suspending the parole which had theretofore been granted in the discretion of the trial judge. In the last Code section referred to above it is said: “In case the trial judge shall find that the defendant has been guilty of a violation of some statute of this state or has been guilty of conduct inconsistent with good citizenship, the trial judge shall have the right by order entered upon his minutes to revoke the suspension of sentence and/or parole theretofore granted to the defendant, but in such cases of a revocation of such suspension and/or parole, the defendant shall have the right to appeal therefrom to the Supreme Court of this state by filing his bill of exceptions and motion for a new trial as now provided by law. ’ ’

Upon the hearing, testimony of the prosecutor in a charge of robbery against the plaintiff in error was introduced, and likewise the testimony of the plaintiff in error upon this charge was introduced. Other evidence was likewise introduced. The record shows that the plaintiff in error was acquitted in the Criminal Court upon this charge of robbery, and it was also shown that the plaintiff in error had not made his monthly report to the parole officer of Knox County as required, but it was also shown that the plaintiff in error had been in jail during most of this time.

The plaintiff in error complains most bitterly that the trial judge was concluded by the verdict of not guilty in the trial for robbery — in other words, his argument is that since he had been acquitted on this subsequent robbery charge, that is, subsequent to the offense in which he plead guilty for which he was paroled, that since the jury had acquitted him in this subsequent charge that then the trial judge must take this acquittal or verdict of the jury as final and conclusive that he had not violated the parole. It is thus very strongly insisted that being thus acquitted, the trial judge had no right to revoke the parole.

The trial judge is not bound on this hearing for a parole by the verdict of not guilty in the case. It must be remembered that here the parole, in the first instance, was granted to the prisoner at the discretion of the trial judge. When it appears to the judge who has granted this parole that the parole has been violated in some manner wherein it is shown that the parolee is “guilty of conduct inconsistent with good citizenship” the trial judge may revoke the parole. It is entirely possible that the evidence introduced in the subsequent trial, wherein the parolee was acquitted by the jury, that the evidence therein might convince the trial judge that the parolee was “guilty of conduct inconsistent with good citizenship” and yet at the same time the evidence in that case might not have been sufficient to have convicted the prisoner under the rules of criminal law.

Under the statute upon which this parole was granted there is no indication or suggestion that the trial judge must be controlled in his actions by the result of a subsequent criminal prosecution. The verdict in this subsequent suit of not guilty is a finding only that the plaintiff in error was not guilty of the offense there charged, and is not necessarily a finding that he was not guilty of “conduct inconsistent with good citizenship.” This verdict of not guilty is simply a bar to further criminal prosecution for the same offense. The authorities generally lay down the rule that a judgment of acquittal is not binding or conclusive in subsequent proceedings. See State ex rel. Turner v. Gore, 180 Tenn. 338, 175 S. W. 2d 317, and authorities there cited. The judgment of acquittal in a criminal case constitutes no bar to subsequent civil actions. 30 Am. Jur., Judgments, Section 291. A hearing for revocation of parole is conducted under the rules applicable to a civil case.

It therefore seems very clear to us that under this record the trial judge was well within his rights in revoking the parole of the plaintiff in error. The judgment below must be affirmed with costs.