People v. Sutton, 79.
| Decision Date | 08 September 1948 |
| Docket Number | No. 79.,79. |
| Citation | 33 N.W.2d 681,322 Mich. 104 |
| Parties | PEOPLE v. SUTTON. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Presque Isle County; Arthur W. Wilcox, Circuit Judge.
Elmer Sutton was convicted, on a plea of guilty, of taking indecent and improper liberties with the person of a female child, and he was placed on probation, was ordered to pay $350, by way of fine and costs, and to make monthly reports. From an order revoking defendant's probation and from imposition of a prison sentence, the defendant appeals.
Order and sentence vacated and set aside and case remanded for further proceedings.
Before the Entire Bench.
Louis G. Jarboe, of Rogers City, for respondent.
Frederick P. Hempel, Pros. Atty., of Rogers City, for plaintiff and appellee.
Defendant was arraigned in the circuit court of Presque Isle County on an information charging the taking of indecent and improper liberties with the person of a female child under the age of 16 years without committing or intending to commit the crime of rape, in violation of § 336 of Act 328, Pub.Acts 1931, Comp.Laws Supp. 1940, § 17115-336, Stat.Ann. § 28.568. To such charge he pleaded guilty and his plea was accepted. Following the arraignment he was placed on probation for a period of two years and, in addition to the statutory terms and conditions, was ordered to pay the sum of $350.00 by way of fine and costs and to make monthly reports as directed by said order. The proceedings in question occurred on June 12, 1947.
In December, 1947, a petition was filed by Alton H. Cowan, the field supervisor or probation officer for the Michigan corrections commission for the judicial circuit in which the county of Presque Isle is situated, alleging that defendant had violated the terms of his probation by failing to make payments in accordance with the terms of the order and also by failing to make monthly reports as therein provided. Following the hearing on such petition, the order of probation was revoked and defendant was sentenced to state's prison for not more than 10 years nor less than 2-1/2 years. On leave granted he has appealed, asking that the sentence be set aside and seeking also the reversal of the order revoking his probation.
The question at issue is whether the provisions of the order with reference to the fine and costs to be paid by defendnat and the reports to be made by him, are sufficiently specific to justify the revocation of probation. The provisions of the order material to the present inquiry are as follows:
‘And the court having decided to place the defendant on probation, it is ordered that in addition to the statutory terms and conditions of the two year period of probation hereby imposed, that the respondent pay a fine of three hundred ($300.00) dollars and fifty ($50.00) dollars costs beginning August 1st, 1947, and monthly thereafter until such fine and costs are paid, all to be paid on or before June 12, 1949. * * *
‘And further said respondent do report monthly to the probation officer hereinafter designated. * * *’
Defendant emphasizes the failure of the order to specify the amount to be paid by him each month and also the statement that his reports should be made to the probation officer ‘hereinafter designated.’ It is pointed out that the order as made and entered did not designate specifically a probation officer and that no amendment to the order was thereafter made by the court. It is argued also that the making of a merely nominal payment each month would constitute a compliance with the order as drawn, that failure to make such nominal payment should not be regarded as of sufficient materiality to justify revocation of the probation, and that payment of the amount specified on or before June 12, 1949, will satisfy the order as made.
At the hearing before the trial court on the petition for the revocation of defendant's probation, Mr. Cowan was called as a witness for the people and testified that in September, 1947, he interviewed defendant and that they discussed at some length the terms and conditions of the probationary order. It is a fair conclusion that Mr. Cowan did not construe said order as requiring defendant to make a monthly payment in any certain or specific amount. His testimony justifies the conclusion that he advised defendant, in substance, that such payments in reasonable amounts should be made. However, the court was not asked to modify the order in any way and obviously Mr. Cowan recognized that as probation officer or field supervisor for the state corrections commission he had no authority to do so. He further advised defendant that no report for the month of September was necessary to be made, and he was uncertain as to whether he gave defendant any blanks for future reports. At the time defendnat was placed on probation the record indicates there was some discussion with reference to transferring probationary oversight to Oakland county. With reference to this matter the trial judge stated in open court:
In answer to the court's suggestion and question the prosecuting attorney replied in the affirmative. Mr. Cowan indicated in his testimony that he discussed with defendant the matter of probationary oversight, indicating that action for the transfer would be taken. Testifying in his own behalf before the trial court, defendnat contended that he was uncertain to whom he should make reports under the court order.
On behalf of the people it is insisted that the order of probation was sufficiently certain to require defendant to make payments to the county clerk and also to make reports to Mr. Cowan. In substance it is charged that there was not a proper spirit of cooperation on defendant's part. Emphasis is placed on the failure of defendant to comply fully with the suggestions made to him by Mr. Cowan, and also on statements made by him on the hearing indicating that he felt that he was being improperly harassed by the proceedings to revoke the probationary order. Defendant's conduct, it is claimed, indicated an improper attitude on his part with...
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People v. Vanderpool
...be sufficiently clear to enable the probationer to know what he is required to do in order to comply with it," People v. Sutton , 322 Mich. 104, 109, 33 N.W.2d 681 (1948), and "specify the period during which it is to continue," Hill v. Hill , 322 Mich. 98, 103, 33 N.W.2d 678 (1948).The dis......
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People v. Rial
...323 (1943). Evidence of the charge is the only factor to be considered in determining whether to revoke probation. People v. Sutton, 322 Mich. 104, 33 N.W.2d 681 (1948); People v. Elbert, 21 Mich.App. 677, 176 N.W.2d 467 (1970). There must be a record of the hearing that demonstrates the du......
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People v. Brown
...323 (1943). Evidence of the charge is the only factor to be considered in determining whether to revoke probation. People v. Sutton, 322 Mich. 104, 33 N.W.2d 681 (1948); People v. Elbert, 21 Mich.App. 677, 176 N.W.2d 467 (1970). There must be a record of the hearing that demonstrates the du......
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People v. Peterson, Docket No. 19746
...or something in between.'3 We have examined cases such as People v. George, 318 Mich. 329, 28 N.W.2d 86 (1947), and People v. Sutton, 322 Mich. 104, 33 N.W.2d 681 (1948), which we found helpful to a limited degree. However, they are distinguishable from the instant case.Note also that this ......