Alewine v. State

The court did not err in revoking the probation sentence of the defendant.

DECIDED JULY 15, 1949. REHEARING DENIED JULY 28, 1949. Error is assigned on the judgment of the City Court of Athens revoking the probation sentence of the defendant. The petition of the solicitor of that court to the judge set forth substantially that the defendant did on May 13, 1949, enter a plea of guilty to an accusation in the City Court of Athens for "possessing non-tax-paid liquor," and that he was sentenced by the court to pay a fine of $100, including costs, and to work on the public-works camp of Clarke County for a term of 12 months, but was permitted to serve said sentence on probation upon the payment of the fine. It was further alleged that on May 14, 1949, the defendant violated the terms and conditions of the said probation sentence by failing to abide by its terms and conditions. The solicitor moved for the court to revoke the probation sentence. On May 21, after due notice to the defendant and his attorney, the court set a hearing as to whether the probation sentence should be revoked. The court, in its judgment revoking the probation sentence, stated in part: "After having heard the evidence pursuant to said motion above, the defendant and his counsel both being present and given the opportunity to be heard, now, after having heard evidence from both sides in said case as aforesaid, it is ordered that the terms of said probation sentence be revoked and that the defendant be disposed of and dealt with in accordance with the terms of same."

The evidence on the hearing is substantially as follows: A police officer, J. E. McCurley, of the City of Athens, testified that on the night of May 14, 1949, at approximately 9 p. m., he and another police officer, Allen Hansford, were riding down Warsaw Street in Athens, Clarke County, Georgia, when they met, coming down this street, a car driven by Mrs. Mavis Wilson. The officers stopped in the middle of the street, and the car driven by Mrs. Wilson ran into the ditch, the cars being close together. The defendant immediately jumped out of the car driven by Mrs. Wilson, with a sack in his hand, and started running up the middle of the street in the direction from which the Wilson car had come. Within a few seconds, the witness McCurley jumped out of the police car and chased the defendant. The officer had a flashlight in his left hand and pulled his gun with his right hand as he ran after the defendant. He called for the defendant to halt and fired one shot in the air at the same time. The defendant did not stop, but dropped the sack and ran off the street between two Negro houses and went down in a field, where the officer found the defendant with the aid of the officer's flashlight. McCurley carried the defendant back to the police car and turned him over to Hansford. All this took place in a period of about 3 or 4 minutes. The officer went back and found a sack containing three one-half gallon jars, which jars contained non-tax-paid liquor.

On cross-examination, officer McCurley testified: "I know it was the same sack the defendant dropped while being chased. I admit that the sack was out of my sight for several minutes and it is possible that someone could have substituted another sack, but I am willing to swear it was the same sack."

Police officer Hansford testified substantially as follows: The defendant had a sack when he jumped from the car. Policeman McCurley chased the defendant. The witness ran over to the Wilson car and cut off the ignition. This witness heard glass jars clinking while McCurley was chasing the defendant. McCurley brought the defendant back and then left and returned with a sack containing three one-half gallon jars of non-tax-paid liquor. The jars were full, and this witness opened and smelled them. At the time "we stopped the car driven by Mrs. Wilson, the defendant jumped out of the car and ran away." The witness did not follow the defendant, but stayed at the car driven by Mrs. Wilson and proceeded to arrest Mrs. Mavis Wilson and Miss Hazel Wilson.

Mrs. Mavis Wilson testified for the defendant substantially as follows: There was no liquor in the car and the witness did not see any liquor in the possession of the defendant. If there had been any liquor in the car, the witness would have seen it. The car belonged to the defendant, but the witness was driving it.

Miss Hazel Wilson testified for the defendant substantially as follows: There was no liquor in the car, and she did not see any liquor in the possession of the defendant; and if there had been a sack of liquor in the car, the witness would have seen it. The car was a coupe, and there were three people on the seat.

The defendant testified as follows: "The reason I jumped out of the car and ran was that I was afraid that Mrs. Wilson's husband was after me. I did not have liquor in my possession and I did not have a sack."

The court reduced to writing the following statement: "Georgia, Clarke County, Thomas Odell Alewine, alias Tony Alewine, entered a plea of guilty in the City Court of Athens, said county, before the undersigned on May 13, 1949, to a charge of possessing non-tax-paid whisky and was sentenced to pay a fine of $100 and serve a probation sentence of twelve months, the number of this case being 10226. On the late afternoon of Monday, May 16, 1949, after I had dismissed the jury in the trial of a case until the following morning, I returned to my office in the courthouse and found this defendant in my office, in the custody of some of our local officers, and at that time was advised by the officers that this defendant had been apprehended here in the City of Athens on the night of Saturday, May 14, 1949, by two of the city policemen, in possession of one and one-half gallons of non-tax-paid whisky. I spoke to the defendant and asked him what he was thinking of doing such a thing the very next day after he had been sentenced in this court and placed on twelve months' probation, and the defendant answered that he didn't know. I recall that I then asked him if he thought that because he had just been sentenced the officers would not have their eyes on him for a while, and he answered, `I guess so' or `I reckon so.' I then stated that it would not be possible to have a hearing on the matter until the following Saturday morning, May 21, as a jury was in attendance all of last week.

"Upon the hearing on the morning of May 21, 1949, the State introduced Officers Hansford and McCurley, and defense counsel Scott and Horne introduced defense witnesses, Mrs. Mavis Wilson and Miss Hazel Wilson and then the defendant, who denied his guilt. I then asked him if he recalled what had transpired in my office on Monday afternoon, May 16th, repeating in substance what is hereinabove set forth, and he replied that he did, but that he did not intend to convey the impression to me that he was admitting his guilt.

"The foregoing is reduced to writing at the request of Messrs. Scott and Horne. . . [Signed] Arthur S. Oldham, Judge, City Court of Athens." The defendant calls our attention to Code, § 27-2705, dealing with the question of delinquent probationers and revocation of the sentences of the court. The defendant also cites Wood v. State, 68 Ga. App. 43 (21 S.E.2d 915). That case is cited, as counsel states, "for the principles of the law of probation in what is commonly referred to as suspended sentences." Counsel also calls to our attention the case ofAllen v. State, 78 Ga. App. 526, 530 (51 S.E.2d 571), and quotes from that case as follows: "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." It is the contention of counsel, after quoting the above, that in the instant case there was no direct evidence of the violation of any State statute, and there was uncontradicted evidence by two unimpeached witnesses that the defendant had not violated any State or Federal statute. It is further contended by counsel that the defendant was not given notice and an opportunity to be heard upon the question of revocation of the probation sentence, because, upon the afternoon of May 16, 1949, the Judge of the City Court of Athens questioned the defendant in his private office without giving the defendant the benefit of counsel or without advising the defendant of the legal rights of the defendant; and that the facts, as set forth in the evidence in the prepared statement of the Judge of the City Court of Athens, show that the defendant was deprived of his legal right to notice and hearing on the question of revocation. We cannot agree with this contention. The statement signed by the Judge of the City Court of Athens shows no reason why we should reverse his judgment in revoking the probation sentence. The facts do not, in our opinion, show that the judge abused his discretion. In such a case as the one at bar, the judge is the trior of the facts and has a very wide discretion and, unless a manifest abuse of such discretion on the part of the lower court appears, this court will not interfere. See Olsen v. State, 21 Ga. App. 795 (95 S.E. 269), and Brown v. State, 71 Ga. App. 303 (30 S.E.2d, 783), as to this question. This court held in Allen v.State, supra, cited by counsel for the State, in addition to what we have heretofore quoted, as follows: "To sustain an order revoking a probation, evidence need only to be sufficient to satisfy the judge that the defendant has violated the probation. . . Although slight evidence will support a judgment of revocation of probation, some evidence is required."

Under this record, the court did not err in revoking the probation sentence of the defendant.

Judgment affirmed. MacIntyre, P. J., and Townsend, J., concur.