Phoenix v. State, 33938
| Decision Date | 25 May 1956 |
| Docket Number | No. 33938,33938 |
| Citation | 162 Neb. 669,77 N.W.2d 237 |
| Parties | Norman PHOENIX, Plaintiff in Error, v. The STATE of Nebraska, Defendant in Error. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. By statute, the court or a magistrate thereof may, in case of the violation of probationary conditions, upon motion and showing by affidavit of the county attorney, issue a warrant for the arrest of the probationer. Such procedure is not exclusive. The same purpose may be accomplished by the filing of a verified information stating specifically the conduct constituting violation of the probationary conditions.
2. Section 29-2219, R.S.Supp.1955, simplifies the procedure to vacate a parole. However, such proceeding may be instituted by a verified information.
3. To vacate a parole granted by the district court, whether by motion or information, the defendant is entitled to notice of a hearing, the assistance of counsel, the testimony of witnesses, and a fair and impartial trial.
4. The accused is entitled to a fair and impartial hearing. He may not demand a formal trial or trial by jury. It is sufficient that the violation of the conditions is established by clear and satisfactory evidence, and proof beyond a reasonable doubt is not required.
5. Technical formality and preciseness of charge are not a prerequisite to judicial investigation of whether or not defendant has observed the conditions of his probation. A statement of the facts showing the claimed violation of his parole, notice to the defendant of a hearing, and a lawful hearing on the charge, are sufficient.
O'Sullivan & O'Sullivan, Omaha, for plaintiff in error.
Clarence S. Beck, Atty. Gen., Richard H. Williams, Asst. Atty. Gen., for defendant in error.
Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.
The plaintiff in error, hereinafter called defendant, brings his case to this court for review. The questions raised by the defendant for determination are as follows: (1) Whether or not the proper statutory procedure was followed on July 5, 1955, by the State in bringing the matter of his parole violation before the trial court to act upon; and (2) whether or not the trial court committed error in permitting the deputy county attorney to amend an information filed in this proceeding on July 5, 1955, the amendment being allowed on September 22, 1955, after the 3-year probation period had expired, the expiration date of the same being July 21, 1955.
The transcript discloses that on July 16, 1952, an information was filed in the district court for Douglas County charging Norman Phoenix with grand larceny. On the same date the defendant entered his plea of guilty to the charge of grand larceny. Sentence was deferred, and an assistant public defender was appointed to defend Phoenix. On July 21, 1952, the trial court placed the defendant on probation to the adult probation officer of Douglas County for a period of 3 years from and after July 21, 1952, the conditions of probation being generally as provided by sections 29-2218, 29-2219, and 29-2220, R.R.S.1943.
On July 5, 1955, an information was filed against the defendant charging him with violation of his parole. Under the terms of the probation, the defendant was required to make a report each month to the adult probation officer. The information alleged that the defendant failed to make his report to the adult probation officer for the month of December 1954. The information alleged that the defendant, in the month of January 1955, left the jurisdiction of the court and the State of Nebraska without the permission of the adult probation officer, and failed to notify such officer of his change of address. On September 22, 1955, the State, over objections of the Douglas County public defender, was permitted to delete from the information the words 'did in the month of January, 1955, leave the jurisdiction of the court and the State of Nebraska without the permission of the said Adult Probation Officer or this court' and to amend it by adding the words 'did fail to make monthly reports to the Adult Probation Officer for the months of January to July, 1955, inclusive.'
Counsel for the defendant objected to these amendments and requested a 24-hour continuance before pleading to the information. The defendant then filed a motion to quash the amended information. It recited that the amendment to the information charging that the defendant did violate the terms of the order of probation entered by the court by failing to report to his probation officer for the months of January through July 1955, was improper for the reason that said amendment was not made until after the period of probation fixed by said order of probation had expired and charged a violation of probation totally separate and distinct from the violation of probation charged in the information. The motion to quash the amended information was overruled. The defendant was arraigned and entered his plea of not guilty. The trial court sentenced the defendant to serve a period of 3 years in the State Penitentiary from and after September 23, 1955.
With reference to the first question above set forth, the defendant argues that under section 29-2219, R.R.S.1943, and before it was amended by the 1953 Legislature, which is now cited as section 29-2219, R.S.Supp.1955, the proper procedure was by information filed in the district court to bring a matter of parole violation before the court; and that under section 29-2219, R.S.Supp.1955, the court or a magistrate thereof may, under subdivision (3)(b) of said section 'in case of the violation of such probationary conditions, upon motion and showing by affidavit of the county attorney, issue a warrant for the arrest of the probationer,' which changes the mode of procedure from what it was formerly.
In Sellers v. State, 105 Neb. 748, 181 N.W. 862, this court held: 'In a proceeding to vacate a parole granted by the district court, the correct practice requires a verified information, stating specifically the conduct constituting a violation of probationary conditions, but a proceeding by motion, stating that defendant violated his parole, may be sustained, if defendant had timely notice of a hearing, the assistance of counsel, the testimony of witnesses, and a fair and impartial trial.' See, also, Moore v. State, 125 Neb. 565, 251 N.W. 117; Moyer v. State, 144 Neb. 673, 14 N.W.2d 220; Carr v. State, 152 Neb. 248, 40 N.W.2d 677.
In Young v. State, 155 Neb. 261, 51 N.W.2d 326, 329, we cited the foregoing cases, referred to the principle announced therein, and said: 'Obviously, if a matter of this kind may be raised by motion without depriving a defendant of any rights protected by law, it of necessity follows...
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