Opinion
32646.
DECIDED OCTOBER 11, 1949.
Revocation of probation; from Dooly Superior Court — Judge Gower. May 7, 1949.
Benjamin Zeesman, for plaintiff in error.
Harvey L. Jay, Solicitor-General, contra.
1. Where a probationer is arrested on an order of the trial court directing that he be placed in custody until a given date and then brought before the court for examination to determine the issue of whether or not his probation shall be revoked, and such probationer is brought before the court under arrest at the time and place specified, and counsel for the probationer also appears and represents him at the hearing, it will be presumed that he had proper notice and ample opportunity to be heard, it not appearing that counsel made any motion for a continuance to allow additional time to prepare the defense.
2. In a proceeding to revoke a probation sentence under Code § 27-2705, it is not improper for the trial court to issue an order or warrant for the arrest of the probationer and to conduct the proceeding himself.
3. In order to be in a position to complain of the abridgment of the right of cross-examination, a party to a legal proceeding or his counsel must either ask the questions he desires to ask or state to the court what questions he desires to ask and then interpose timely objection to the ruling of the court denying the right to propound the questions.
4. In a proceeding for the revocation of a probation sentence the trial court has a wide discretion and only slight evidence will support a judgment of revocation. This court will not interfere unless a manifest abuse of this discretion appears. Allen v. State, 78 Ga. App. 526 ( 51 S.E.2d 571).
DECIDED OCTOBER 11, 1949.
Ed Waters was brought before the Judge of the Superior Courts of the Cordele Judicial Circuit under an order issued by the said judge directing that the defendant be brought before him to show cause why a probation sentence previously imposed in Dooly County should not be revoked. The defendant was arrested in Wilcox County on this order charging him with acts in the latter county which constituted a violation of the terms of the probation sentence, and was brought before the trial judge in Crisp County where the hearing was conducted.
On February 21, 1949, the defendant had entered a plea of guilty to the charge of unlawfully manufacturing liquor in Dooly County. The trial court reduced this offense to a misdemeanor and imposed a sentence providing for twelve months at the State Farm and six months in the common jail of the county, all on probation.
On April 30, 1949, the order hereinbefore referred to was issued directing that the defendant be arrested and placed in the Wilcox County jail pending the further order of the court, without bail, and further directing that the defendant be brought before the court on May 7, 1949, to show cause why the probation should not be revoked. The defendant was so arrested and placed in the Wilcox County jail and held without bail until May 7, 1949. On this date he was brought before the judge and a hearing conducted to determine whether or not the probation should be revoked, and the defendant required to serve the remainder of his sentence as provided in the original sentence. On this hearing the defendant was represented by counsel.
The evidence introduced at the hearing authorized the trial judge to find that the defendant delivered two gallons of liquor to a prospective purchaser in Wilcox County during the early morning hours of a Saturday in April, 1949. At the conclusion of the hearing the judge entered an order revoking the probation and requiring the defendant to serve the remainder of his sentence inside the institutions provided in the original sentence, and this judgment is assigned as error.
1. Counsel for the defendant in error contends that the order of the trial court of April 30, 1949, was never properly served upon the prisoner, and that for this reason the revocation of the probation was erroneous. It is of course necessary to the validity of an order for revocation of parole that the probationer have notice and an opportunity to be heard. Smith v. Veach, 165 Ga. 190 ( 140 S.E. 356); State v. Thompson, 175 Ga. 189 ( 165 S.E. 34); Roberts v. Lowry, 160 Ga. 494 ( 128 S.E. 746). In the latter case it was held as follows: "2. The due examination thus provided by the probation law requires that the probationer be given notice and an opportunity to be heard upon the question whether his parole shall be revoked or not."
It appears from the record that the defendant was present at the hearing and was represented by counsel, and no objection was made at that time to the effect that the notice was insufficient, either as to length of time or in any other respect, to allow counsel to prepare his defense, nor was a continuance requested for this purpose. We must therefore assume that "due notice" was in fact received by the defendant or that, in any event, the general appearance of the defendant by his counsel constituted a waiver of any irregularity therein. At law or in equity, a defendant, by appearing and pleading to the merits without excepting to the jurisdiction of the court waives any objection to the jurisdiction of his person. Black v. Milner Hotels, 194 Ga. 828 ( 22 S.E.2d 780).
2. Counsel for the defendant complains that the trial court, by issuing the order aforesaid on its own motion, and by questioning the witnesses during the progress of the hearing, usurped the offices of the solicitor-general and in effect conducted the prosecution of the case.
An examination of the evidence in this case does not disclose that the trial court in any way departed from his judicial functions. Code § 27-2705, after stating the conduct which must be maintained by a prisoner on probation, continues: "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."
The order issued by the judge amounted to a warrant arresting the prisoner, and was therefore a substantial compliance with this Code section. This section further contemplates that the examination shall be conducted by the court, or under his direction, in order that he may ascertain whether or not the probation should be revoked. There is therefore no merit in this contention.
3. Complaint is made to the method of conducting the hearing on the ground that the defendant's counsel was not allowed to complete his cross-examination of the witness Nelson, a codefendant who had likewise been ordered to show cause why his probation should not be revoked. In this respect the evidence merely discloses that counsel for the defendant asked Nelson the following question: "Before you testified were you warned that under the Constitution of the United States that you do not have to incriminate yourself?" The record shows that, following the remark of the trial court to the effect that the witness was also represented by counsel, such counsel then questioned his client along somewhat the same lines. No objection was made to this questioning, nor did the attorney for the defendant proceed with his cross-examination. It does not appear, therefore, that the right of cross-examination was in any way abridged by the court.
4. The evidence in this case was sufficient to authorize the trial court to find that the prisoner had violated the condition of his probation in that he had, subsequently to that time, violated a law of this State by selling whisky, and he was therefore authorized to revoke the probation. Turner v. State, 73 Ga. App. 330 ( 36 S.E.2d 200). Such revocation will not be interfered with by this court in the absence of a manifest abuse of discretion on the part of the trial judge. Brown v. State, 71 Ga. App. 303 ( 30 S.E.2d 783); Olsen v. State, 21 Ga. App. 795 ( 95 S.E. 269).
Judgment affirmed. MacIntyre, P.J., and Gardner, J., concur.