Bryant v. State, 35079
| Decision Date | 11 March 1954 |
| Docket Number | No. 35079,35080,No. 2,35079,2 |
| Citation | 81 S.E.2d 556,89 Ga.App. 891 |
| Parties | BRYANT v. STATE. JENKINS v. STATE |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
1. An assignment of error, in order to present an issue for review by this court, must complain of an adverse ruling by the trial court.
2. A provision in a probation sentence that the 'sentence is suspended on payment of fine and on the further condition that defendant not violate the laws of Georgia, and until further order of this court,' is not so vague, indefinite, ambiguous and uncertain as to be unenforceable, the laws of Georgia being fixed by statute and presumed to be within the knowledge of every competent person.
3. The degree of evidence necessary to convict in a criminal case being that which convinces the jury of the guilt of the defendant beyond a reasonable doubt, and the degree necessary to support the revocation of a probation sentence being only some evidence that the defendant has violated the conditions of the probation which satisfies the trial court hearing the same in the exercise of a very wide discretion--it is not necessary to show that the defendant has been convicted of the act constituting the condition of the probation. The sole issue before the trial court is that of whether or not the defendant has committed the act.
4. The judgment of revocation is supported by some evidence, and no abuse of the discretion vested in the trial court appearing, the judgment will not be set aside by this court.
The plaintiffs in error, Eddie Sam Bryant and Rufus Jenkins, were each convicted of lottery and given probated sentences upon payment of a fine. Thereafter, upon the same evidence, the probation features of the sentences were revoked in the Criminal Court of Fulton County. Identical petitions for certiorari were taken to the Superior Court of Fulton County, and after hearing were overruled. The exceptions are to these judgments, and the cases will be here considered together.
John C. Tyler, Wesley R. Asinof, Marvin O'Neal, Jr., Atlanta, for plaintiffs in error.
John I. Kelley, Sol., Paul Webb, Sol.Gen., C. O. Murphy, Robert O'Neil, Atlanta, for defendant in error.
1. The application for certiorari assigns error on the overruling of a motion by the defendant, prior to the introduction of evidence, that the State reduce to writing its motion to revoke the sentence. In this regard, the record reveals that the defendants were brought before the court, each represented by counsel, without any written pleadings such as a petition by the solicitor-general or rule nisi, and that counsel for one of the defendants then stated, 'We would like to be apprised of what we are here for,' and, after some discussion, made an oral motion that the grounds for revocation be reduced to writing. The solicitor then stated that, while he did not understand there was any requirement for the motion to be reduced to writing, he could accommodate them. The court then indicated that the defendants were entitled to be put on notice of the State's contention, after which the solicitor orally and in detail stated that the defendants were accused of the offense of hazarding money, identical to the offense for which they had been convicted, and stated the time, place, and manner thereof according to the State's contentions, after which the court offered counsel for the defendants a recess to consider the solicitor's statements. Counsel refused this offer, did not renew their motion to reduce the charge to writing, but immediately proceeded to make an objection thereto in the nature of an oral demurrer, on the ground that the charge was too vague and indefinite to present a violation of the laws of Georgia, they contending that the original sentence would not warrant such a proceeding unless based upon a conviction for the second offense. This demurrer was overruled, and the case proceeded for trial.
Code, § 27-2705 provides for 'due examination' before revocation of the probation feature of a sentence, and does not state that the charges must be in writing. 'Due examination' means counsel did not continue to insist on this point after the solicitor offered to reduce the notice to writing, and the court offered a recess for further consideration. Instead, they recognized the existence of the oral notice by demurring to it on certain technical grounds,...
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