Manning v. United States, 11848.

• Decision Date: 02 August 1947
• Docket Number: No. 11848.,11848.
• Citation: 161 F.2d 827
• Parties: MANNING v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

161 F.2d 827 (1947)

MANNING v. UNITED STATES.

No. 11848.

Circuit Court of Appeals, Fifth Circuit.

May 28, 1947.

Rehearing Denied August 2, 1947.

G. Ernest Jones and Robert W. Gwin, both of Birmingham, Ala., for appellant.

John D. Hill, U.S. Atty., of Birmingham, Ala., for appellee.

Before HUTCHESON, McCORD, and WALLER, Circuit Judges.

On Petition for Rehearing. Before SIBLEY, McCORD, and LEE, Circuit Judges.

McCORD, Circuit Judge.

On October 18, 1945, on plea of guilty, Donald R. Manning was convicted on eight counts of an information charging him with unlawfully introducing in interstate commerce a number of packages containing drugs which had been misbranded, all in violation of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C.A. § 352(a). Manning was sentenced to thirty days imprisonment under count one, and on the other counts was placed on probation for a period of three years.

On November 13, 1946, the probation officer filed a complaint charging that Manning had violated the conditions of his probation. The matter came up for hearing on November 15, 1946, and Manning moved for a more definite and formal complaint setting out the charges against him. The motion was denied, but there was filed a statement which recited: "Violations of Conditions of Probation: 1. Practicing medicine without a license during period from May 1, 1946, to August 31, 1946. 2. On or about May 9, 1946, used the mails to defraud Charles Ebel of Box 117, Cherokee, Ala. 3. On or about August 26, 1946, used the mails to defraud M. T. Hanson, Repton, Ala. 4. On or about August 26, 1946, used the mails to defraud Olive Harold of Box 369, Bay Minette, Ala." The hearing was continued until November 22, 1946, and was then conducted before the district judge that had originally placed Manning on probation. Testimony for and against Manning was received, and at the conclusion of the hearing the district judge revoked Manning's probation,¹ fined him $750.00, and committed him to the custody of the Attorney General for a period of one year. From the order revoking the probation, Manning has appealed.

Appellant contends that he was entitled to have in advance a list of adverse witnesses and a more particular specification of the charges against him than was furnished; that there were no conditions of probation pronounced at the time he was placed on probation; and that the evidence at the hearing was not sufficient to justify revocation of probation on either of the theories: (1) That he was using the mails to defraud, (2) that he was practicing medicine without a license, or (3) that he was not leading an honest life as required by the alleged conditions of probation.

As to appellant's allegations that the complaint against him was not specific enough, it is sufficient to say that a proceeding for revocation of probation is not one of formal procedure "either with respect to notice or specification of charges or a trial upon charges. The question is simply whether there has been an abuse of discretion and is to be determined in accordance with familiar principles governing the exercise of judicial discretion." Burns v. United States, 287 U.S. 216, 53 S.Ct. 154, 156, 77 L.Ed. 266; Escoe v. Zerbst, 295 U.S. 490, 55 S.Ct. 818, 79 L.Ed. 1566; Dillingham v. United States, 5 Cir., 76 F.2d 35.

A probationer may not have his probation revoked unless it is made to appear that he has failed to comply with the terms and conditions of his probation. Mankowski v. United States, 5 Cir., 148 F.2d 143, 144. Appellant accordingly asserts that no terms or conditions of probation were included in the judgment placing him on probation. This contention is without basis or merit. Since September 21, 1939, there has been in the District Court of the Northern District of Alabama a standing order imposing general conditions of probation.² Not only did this order apply to Manning's case, but the conditions in the order were specifically called to his attention in a written statement, of which he received a copy, and for which he gave his receipt in writing.³

There is no merit in appellant's contention that the evidence was not sufficient to justify revocation of his probation. Action of a trial judge in revoking probation is an exercise of broad discretionary power, and on appeal the question is simply whether there has been an abuse of discretion. Burns v. United States, 287 U.S. 216, 53 S. Ct. 154, 77 L.Ed. 266; Pritchett v. United States, 4 Cir., 67 F.2d 244. There is...