Roberts v. Lowry

• Decision Date: 19 June 1925
• Docket Number: 4844.
• Parties: ROBERTS v. LOWRY, SHERIFF.
• Court: Georgia Supreme Court

128 S.E. 746

160 Ga. 494

ROBERTS v. LOWRY, SHERIFF.

No. 4844.

Supreme Court of Georgia

June 19, 1925

Syllabus by the Court.

Where a person placed on probation violates any of the rules prescribed by the court for his conduct, the probation officer may, at any time prior to the final disposition of the probationer's case, while in his custody, without warrant, bring him before the court, or the court may issue a warrant directing that he be arrested and brought before it and the court, after due examination, may revoke its leave to the probationer to serve his sentence outside the confines of the chain gang, jail, or other place of detention. Acts 1913 pp. 112, 114; Park's Penal Code, § 1081(d); Olsen v State, 21 Ga.App. 795, 95 S.E. 269.

The due examination thus provided by the probation law requires that the probationer be given notice and an opportunity to be heard upon the question whether his parole shall be revoked or not; and an order revoking his parole in his absence, without notice and an opportunity to be heard, is null and void.

But it appears, under the most favorable view of her case, that the petitioner had not served the original sentence imposed upon her by the court, and that, at the time of the institution of this proceeding for habeas corpus, the complaint of the probation officer that she had violated the rules prescribed by the court for her conduct while under probation was still pending; and for this reason she was not entitled to a discharge under the writ of habeas corpus at the time it was applied for. Shamblin v. Penn, 148 Ga. 592, 97 S.E. 520.

This renders it unnecessary to pass upon the various questions discussed by counsel in their briefs; but all such questions can be threshed out before the court, on the hearing of the complaint of the probation officer to have the parole of the applicant revoked.

Error from Superior Court, Fulton County; E. D. Thomas, Judge.

Habeas corpus by Billie Roberts against J. I. Lowry, Sheriff of Fulton County. Petitioner was remanded to the custody of the sheriff, and she brings error. Affirmed.

Hewitt W. Chambers and Chambers & Dickey, all of Atlanta, for plaintiff in error.

Roy Dorsey, Sol., of Atlanta, for defendant in error.

HINES, J.

Judgment affirmed.

All the Justices concur, except Gilbert, J., absent for providential cause.

RUSSELL C.J. (concurring specially).

Under the terms of the act of 1913 (Acts 1913,...