Sellers v. State

• Decision Date: 15 March 1963
• Docket Number: No. 2,No. 39800,39800,2
• Parties: Charlie SELLERS v. The STATE
• Court: Georgia Court of Appeals

Page 790

130 S.E.2d 790

107 Ga.App. 516

Charlie SELLERS v. The STATE.

No. 39800.

Court of Appeals of Georgia, Division No. 2.

March 15, 1963.

Rehearing Denied March 28, 1963.

Syllabus by the Court

In a proceeding to revoke a probation the judge is not bound by the ordinary rules of evidence applicable to criminal or civil proceedings. He is not required to accept as true the testimony of the defendant, though not directly contradicted by other testimony and his character is not impeached. Only slight evidence is required to authorize the revocation.

An application was made by the State to revoke the probation of Charlie Sellers who had been convicted of possessing nontaxpaid liquor. On the hearing of the issue thus made the State produced two witnesses. The first, Deputy Sheriff Don Shirley, testified that he and Revenue Agent I. W. Davis went to the defendant's home with a search warrant and that the revenue agent went out the back door of the house and returned shortly with a jar of liquor, and that he did not see any liquor in the house until the revenue agent brought it in. The other witness, Revenue Agent Davis, testified that the defendant's wife was washing clothes on the back porch of the house and that he found the liquor in the washing machine. Both witnesses testified that the defendant was not at home when the raid was made. The defendant testified under oath that no liquor was there when he left, to his knowledge, and that the liquor was not his. At the conclusion of the hearing the trial court ordered the probation revoked and the defendant was ordered to serve the remainder of his sentence. Error is assigned on this judgment.

Kimzey & Kimzey, Herbert B. Kimzey, Cornelia, for plaintiff in error.

Ollie M. Stowe, Solicitor, Toccoa, for defendant in error.

JORDAN, Judge.

The only question before us is whether the evidence in this case is sufficient to authorize the revocation of a probationary sentence under Code Ann. § 27-2713.

'Probation is granted as a privilege, and not as a matter of right; and the revocation of the probation is punishment for the crime for which the defendant was convicted in the first instance.' Johnson v. State, 214 Ga. 818, 819, 108 S.E.2d 313; Cross v. Huff, 208 Ga. 392, 396, 67 S.E.2d 124. Probation of sentence '* * * comes as an act of grace to one convicted of a crime * * *.' Escoe v. Zerbst, 295 U.S. 490, 492, 55 S.Ct. 818, 819, 79 L.Ed. 1566. 'The defendant stands convicted; he faces punishment, and cannot insist on terms or strike a bargain.' Burns v. United States, 287 U.S. 216, 220, 53 S.Ct. 154, 155, 77 L.Ed. 266.

This does not mean that the probationer can be made the victim of whim or caprice. Williams v. State, 162 Ga. 327, 328, 133 S.E. 843; Sparks v. State, 77 Ga.App. 22, 24, 47 S.E.2d 678; Burns v. United States, 287 U.S. 216, 223, 53 S.Ct. 154, 77 L.Ed. 266, supra. Our statutes (Code Ann. § 27-2713 and former Code § 27-2705) expressly give him the right to notice and a hearing on the question of revoking probation. Johnson v. State, 214 Ga. 818, 819, 108 S.E.2d 313, supra; Balkcom v. Gunn, 206 Ga. 167, 56 S.E.2d 482. The failure to afford the probationer such notice and a hearing would render a revocation order void for lack of due process of law. Lester v. Foster, 207 Ga. 596, 63 S.E.2d 402. However, a hearing on a revocation '* * * is not a trial on a criminal charge * * *.' and the probationer has no right to a trial by jury. Johnson v. State, 214 Ga. 818, 819, 108 S.E.2d 313, 314, supra. It is somewhat like an application for a change of venue, which is 'of a civil nature.' See Wilburn v. State, 140 Ga. 138, 140, 78 S.E. 819.

As to the sufficiency of the evidence to authorize revocation, '* * * the trial judge is not bound by the same rules of evidence as a jury in passing upon the guilt or innocence of the accused in the first instance. It is not necessary that the evidence support the finding beyond a reasonable doubt or even by a preponderance of the evidence. The judge is the trior of the facts. He has a very wide discretion.' (Emphasis supplied.) Allen v. State, 78 Ga.App. 526, 528-529, 51 S.E.2d 571, 574; Price v. State, 91 Ga.App. 381(2), 85 S.E.2d 627. (Emphasis supplied.) This discretion '* * * takes into account the law and the particular circumstances of the case and is directed by the reason and conscience of the judge to a just result.' Sparks v. State, 77 Ga.App. 22, 24, 47 S.E.2d 678, 680, supra. Only 'slight evidence' is required. Faulkner v. State, 101 Ga.App. 889, 115 S.E.2d 393. This court will not interfere with a revocation unless there has been a manifest abuse of discretion on the part of the trial court. Waters v. State, 80 Ga.App. 104, 108, 55 S.E.2d 677; Atkinson v. State, 82 Ga.App. 414, 416, 61 S.E.2d 212; Harrington v. State, 97 Ga.App. 315, 320, 103 S.E.2d 126. The reason for flexability is obvious. The probationer '* * * is still a person convicted of an offense, and the suspension of his sentence remains within the control of the court. The continuance of that control, apparent from the terms of the statute, is essential to the accomplishment of its beneficent purpose, as otherwise probation might be more reluctantly granted, or, when granted, might be made the occasion of delays and obstruction which would bring reproach upon the administration of justice.' Burns v. United States, 287 U.S. 216, 222, 53 S.Ct. 154, 77 L.Ed. 266, 269, supra.

The acts of 1962 (Ga.L.1962, p. 133, Code Ann. § 38-415; Ga.L.1962, p. 453, Code Ann. § 27-405), cited in the dissenting opinion, and the former Code sections which these acts amend, apply to the 'testimony of the accused' in 'criminal trials.' They are not relevant to the present case because a hearing on a revocation of a probationary sentence is not a criminal trial. Johnson v. State, 214 Ga. 818, 819, 108 S.E.2d 313, supra; Sparks v. State, 77 Ga.App. 22, 23, 47 S.E.2d 678, supra. And it is not necessary to discuss the question whether the trior of fact in a civil or criminal case is bound by testimony of a party witness that is not directly contradicted, for the reason that in a revocation proceeding the trial judge is not bound by the rules of evidence applied in ordinary civil or criminal case. Allen v. State, 78 Ga.App. 526, 528, 51 S.E.2d 571, supra; 24 C.J.S. Criminal Law § 1618(11), pages 912, 914-916.

Though not bound by the rules, we do call attention to liberality extended to the trior of fact in considering matters which go to the credibility of a witness. 'The jury cannot arbitrarily disregard the evidence of any witness which is not contradicted or discredited by other evidence or circumstances. The jury should regard the testimony of every witness sworn. They are not obliged to believe it, but it is their duty to give to the evidence of witnesses the weight to which in their opinion, as conscientious men seeking after the truth, they believe it is entitled * * *.' Brunswick & Western R. Co. v. Wiggins, 113 Ga. 842, 844, 39 S.E. 551, 552, 61 L.R.A. 513. (Emphasis supplied.) There is a difference in arbitrarily or capriciously disregarding testimony and in disbelieving it upon a consideration of all circumstances arising from the evidence. There is nothing here to indicate that the defendant's testimony was disregarded. And see Detwiler v. Cox, 120 Ga. 638, 48 S.E. 142; Eberhardt v. Bennett, 163 Ga. 796, 805, 137 S.E. 64; Hancock v. Wilson, 214 Ga. 60, 102 S.E.2d 551; Jones v. Teasley, 25 Ga.App. 784, 788, 105 S.E. 46; Neill v. Hill, 32 Ga.App. 381(2-a), 123 S.E. 30; Fincher v. Harlow, 56 Ga.App. 578, 193 S.E. 452; McRae v. Wilby, 59 Ga.App. 401, 410, 1 S.E.2d 77; Caldwell v. Caldwell, 59 Ga.App. 637, 643, 1 S.E.2d 764; Georgia Highway Express, Inc. v. Sturkie, 62 Ga.App. 741, 747, 9 S.E.2d 683; Chaffin v. Community Loan & Inv. Co., 67 Ga.App. 410(1), 20 S.E.2d 435; Krasner v. Croswell, 76 Ga.App. 421, 422, 46 S.E.2d 207. '[W]here the witnesses' testimony is contradicted by circumstances that can be taken as incompatible with such direct evidence * * * the courts and the juries are not bound to refrain from exercising their own judgments and blindly adopt the statement of a witness or witnesses for the simple reason that no other witness has denied the testimony and that the character of such witness has not been impeached.' Annis v. State, 85 Ga.App. 188, 192, 68 S.E.2d 473. And see Goldwire v. State, 56 Ga.App. 379, 192 S.E. 643.

The evidence relied upon by the State in this case created a legal presumption that the defendant was the owner and possessor of non-tax paid liquor in violation of Code Ann. § 58-1056 (Morgan v. State, 62 Ga.App. 493, 8 S.E.2d 694). Whether the presumption was rebutted was for the trior of fact. Bryant v. State, 106 Ga.App. 182, 185, 126 S.E.2d 538. Another circumstance arising from the evidence which tends to contradict the defendant's testimony was that defendant's daughter grabbed the liquor, ran to the front yard and poured it out.

Even under the rules in a civil or a criminal proceeding, the judge would have been at liberty to consider these circumstances, together with the defendant's interest in the result of the proceeding, his appearance at the time of testifying, his manner of testifying, and the reasonableness or unreasonableness of his testimony, and from these arrive at his own conclusion as to whether the testimony was credible and whether it should be disbelieved.

It is important, too, that we keep in mind that in the instant proceeding the defendant was not on trial to determine whether or not he was guilty of possession of non-taxpaid whisky. On that charge he is entitled to have and will have his day in court under all of the rules, rights and privileges prevailing in criminal trials in this State.

Under the rules of law applicable to this type of proceeding and under the record in this case we cannot say that the trial court's adjudication that the plaintiff in error had violated his probation...