Allen v. State, 32318.
| Decision Date | 01 February 1949 |
| Docket Number | No. 32318.,32318. |
| Citation | 51 S.E.2d. 571 |
| Parties | allen. v. state. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
Although the trial court on a hearing for the revocation of probation has a wide discretion, and although only slight evidence will support a judgment of revocation, some evidence is required. In the instant case there is no evidence to support the contentions of the State that the defendant violated a traffic law on the occasion in question and the judgment of the trial court revoking the probation is therefore error.
Error from City Court of Athens; Arthur S. Oldham, Judge.
A. D. Allen, Jr., was convicted, upon a plea of guilty, of illegally possessing intoxicating liquors, fined, sentenced to a term in the county jail and to a term in the public works camp, and directed to serve such terms on probation. To review a judgment revoking probation, defendant brings error.
Judgment reversed.
The plaintiff in error, A. D. Allen, Jr., hereinafter referred to as the defendant, on July 27, 1948, entered a plea of guilty in the City Court of Athens to an accusation charging him with the offense of illegally possessing intoxicating liquors. He was sentenced to pay a fine of $1,000, to serve 6 months in the Clark County jail, and to work in the public works camp for a term of 12 months, the jail and public works camp sentence, after payment of the fine, to be served on probation until the further order of the court. The fine was duly paid and the defendant entered upon the service of his probation sentence outside the confines of the institutions designated.
On October 8, 1948, the defendant was arrested on a rule issued by the Judge of the City Court of Athens directing him to show cause why his probation sentence should not be revoked.
On the hearing the evidence upon which the State relied for the revocation of the probation sentence, construing it in its light most favorable to the finding of the trial judge that the terms of the probation had been violated, the judge trying the case was authorized to find facts as follows: that on the night of October 7, 1948, the defendant driving a 1941 maroon Ford automobile, one George Posey driving a 1940 Ford coupe and Aubrey Joe Allen, brother of the defendant, driving a 1939 green Ford Tudor were traveling along the highways north of Athens, and whether by previous arrangement or coincidence, were together at certain points including Toccoa and Cornelia; that all these parties lived in Athens; that they drove through the town of Homer at 6:50 a. m. October 8th in a southerly direction toward Cornelia; that the three cars were approximately 150 yards apart at the time and being operated at a speed of 25 to 30 miles per hour; that a collision occurred at a point about 8 milessouth of Homer between the car George Posey was driving and a car driven from the opposite direction at approximately 7 o'clock that morning, in which Posey was killed, a man in the car with him and the man driving the other car in the collision were critically injured; that at various points between Homer and the scene of the collision, 3 cars of the description of the ones being driven by the defendant, his brother and Posey, through Homer, were racing at terrific speed far in excess of the lawful rate.
A. F. Jackson, a witness for the defendant, testified substantially that he was in the car with the defendant about 6:45 or 7 o'clock on the morning of October 8th, 1948; that the defendant drove up to the scene of the collision, passed-between the wrecked automobiles, parked by the side of the highway and returned to the wrecked cars; that he did not know how long the wreck had happened before he and the defendant arrived but they were among the first ones there; that Aubrey Wade was in the car with them; that the defendant was driving the car as they passed through Homer; that shortly outside Homer Aubrey Wade drove a distance of 4 or 5 miles to Clarence Haggard's grocery; that they stopped there to go to the rest room; that when they got ready to resume their journey the defendant drove until they reached the scene of the collision; and that at no point between Homer and the collision did the defendant or the car in which he was riding speed or engage in a race with the car Posey was driving or with any other car. The testimony of this witness was substantiated by Aubrey Wade, another witness for the defendant. Jack Wills, a witness for the defendant, testified that he was a Wild Life Ranger and that he was on the highway between Commerce and Homer checking on early morning dove shooting, and that he saw the defendant standing on the ground...
To continue reading
Request your trial
-
Sellers v. State
...of the evidence. The judge is the trior of the facts. He has a very wide discretion.' (Emphasis supplied.) Allen v. State, 78 Ga.App. 526, 528-529, 51 S.E.2d 571, 574; Price v. State, 91 Ga.App. 381(2), 85 S.E.2d 627. (Emphasis supplied.) This discretion '* * * takes into account the law an......
-
Alewine v. State, 32611.
...the law of probation in what is commonly referred to as suspended sentences." Counsel also call to our attention the case of Allen v. State, 78 Ga.App. 525, 530, 51 S E 2d 571, 574, and quotes from that case as follows: "The statute guarantees to the probationer the right to due examination......
-
Waters v. State
... ... 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 ... Ed ... Waters was brought before the judge of the Superior Court of ... the Cordele ... ...
-
Lankford v. State, 41405
...court in revoking a probationary sentence is less than that necessary to sustain a conviction in the first instance. Allen v. State, 78 Ga.App. 526, 51 S.E.2d 571; Price v. State, 91 Ga.App. 381, 85 S.E.2d 627. Where, after notice and hearing, the court revokes the probationary feature of t......