State v. White

• Decision Date: 31 October 1950
• Docket Number: 16424.
• Citation: 61 S.E.2d 754,218 S.C. 130
• Parties: STATE v. WHITE.
• Court: South Carolina Supreme Court

61 S.E.2d 754

218 S.C. 130

STATE v. WHITE.

No. 16424.

Supreme Court of South Carolina.

October 31, 1950

C. T. Graydon, Columbia, for appellant.

T. P. Taylor, Columbia, for respondent.

L. D. LIDE, Acting Associate Justice.

This is an appeal from an order of Hon. G. Duncan Bellinger, Judge of the Fifth Circuit, dated December 30, 1949, revoking the parole of the defendant, Clyde W. White, and the suspension of the sentence originally imposed upon him on May 20, 1946.

The defendant was indicted by the grand jury of the County of Richland at the May Term, 1946, of the Court of General Sessions; and the indictment contained two counts, one count charging him with having in possession on April 24, 1946, and keeping in his place of business, four points of a certain kind of stamped whiskey and five half pints of a certain other kind of stamped whiskey, and the other count charging him with having in possession for unlawful use the same whiskey. The defendant pleaded guilty to the indictment as charged, and Judge Bellinger, who was then presiding, imposed a sentence upon him, dated May 20, 1946, providing for his imprisonment for a term of two years and for the payment of a fine of $150; but it was further provided that upon the payment of the fine of $150, which was duly paid, the balance of the sentence was thereby suspended, and the defendant was placed on probation for a period of five years under the supervision of the South Carolina Probation and Parole Board subject to the applicable law; and the conditions of the probation were therein stated, the same being in accordance with Section 1038-3, Code 1942. There was included in the sentence, among the various conditions of probation, the following, designated as (c): 'Avoid persons or places of disreputable or harmful character'.

The defendant continued on probation until the order of revocation, from which this appeal is taken; and in the meantime made his monthly reports to the Parole Board, which were introduced in evidence at the hearing herein; and these reports show that in the beginning he lists himself as self-employed at the 'Pig Grill'; but later reports, and the evidence show that the name was changed by him to the 'White Heart', or as it is sometimes put, the 'White Heart Drive-In'; and in his later reports he gives as his employer the 'White Heart Drive-In', and his type of work as that of clerk. It is admitted that the Pig Grill was and the White Heart continued as, a soda fountain and sandwich stand (or 'short order' restaurant) where beer was sold, and was in the front part of a certain building which has a large back room behind it under the same roof.

An incognito investigation (including a raid) was made by certain law officers on the night of December 21, 1949; and as a result thereof a warrant was duly issued by J. C. Todd, Esq. Director of the Parole Board, for the arrest of the defendant, Clyde W. White, charging him with the violation of certain conditions of his probationary sentence dated May 20, 1946, including condition (c) above mentioned. The defendant was arrested and incarcerated upon this warrant, on the date thereof, and thereafter, to wit, on December 29th and 30th, 1949, the matter was fully heard by Judge Bellinger, and testimony was taken in behalf of the State and in behalf of the defendant, at much length, all of which is fully set forth in the Transcript of Record. At this hearing the Solicitor appeared in behalf of the State, and the defendant was likewise represented by eminent counsel. Judge Bellinger eliminated from consideration all specifications referred to in the warrant, except specification (c), which by way of repetition is: 'Avoid persons or places of disreputable or harmful character'.

After argument of counsel for the respective parties, and upon consideration of the testimony, Judge Bellinger handed down his order of revocation dated December 30, 1949; and there are ten exceptions in behalf of the defendant to this order, which are summed up in the appellant's brief as involving three questions, each of which will be considered herein.

The general principles of the law relating to the revocation of paroles, and hearings thereon, are established by our own decisions, as well as cases from other jurisdictions, and are accurately and admirably stated in the case of State v. Miller, 122 S.C. 468, 115 S.E. 742, 745, wherein the opinion was delivered by Mr. Justice Marion, and although this case related to the revocation of a suspended sentence, rather than a suspended sentence accompanied by a parole the rule is practically identical; and we quote the following extended and informative excerpt from this opinion: 'The nature of the inquiry and extent of the investigation to be conducted by the court of general sessions in determining whether the condition of a suspended sentence has been violated are matters that rest in the sound discretion of that court. People ex rel. Forsyth v. Monroe County Court of Sessions, 141 N.Y. 288, 36 N.E. 386, 23 L.R.A. 856. But where the suspension is upon conditions expressed in the sentence imposed, the prisoner has a right to rely upon such conditions, and so long as he complies therewith the suspension should stand. It follows that the authority of the court of general sessions to revoke such suspension of sentence may not be capriciously or arbitrarily exercised, but should always be predicted upon an evidentiary showing of fact tending to establish violation of the conditions. Since, however, this court's authority to review the findings of a lower court upon such an issue is confined to the correction of errors of law, unless it appears that the action of the circuit court was influenced or controlled by some erroneous view of the law, or was wholly without evidence to support it (a judicial determination wholly without a supporting basis of fact being error of law), or amounted to a manifest abuse of discretion, a finding of fact by the court of general sessions as to a breach of the conditions of a suspended sentence is final.'

Among other South Carolina authorities in point may be mentioned State v. Charles, 107 S.C. 413, 93 S.E. 134; State v. Maes, 127 S.C. 397, 120 S.E. 576; and State v. Gleaton, 172 S.C. 300, 174 S.E. 12. The Gleaton case definitely settled the law to the effect that the defendant is not entitled to a jury trial.

We also quote the following from the excellent opinion by Chief Justice Hughes in the United States Supreme Court case of Burns v. United States, 287 U.S. 216, 53 S.Ct. 154, 156, 77 L.Ed. 266 (Federal probation and parole being essentially similar to ours): 'The question, then, in the case of the 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 familar principles governing the exercise of judicial discretion. That exercise implies conscientious judgment, not arbitrary action. The Styria v. Morgan, 186 U.S. 1, 9, 22 S.Ct. 731, 46 L.Ed. 1027 [1033]. It takes account of the law and the particular circumstances of the case and is 'directed by the reason and conscience of the judge to a just result.' Langnes v. Green, 282 U.S. 531, 541, 51 S.Ct. 243, 247, 75 L.Ed. 520 . While probation is a matter of grace, the probationer is entitled to fair treatment, and is not to be made the victim of whim or caprice.'

It should be mentioned here that while counsel for the defendant vigorously urges that the trial Judge committed errors in the revocation of the defendant's parole, there is no charge that the defendant was denied due process of law; for on the contrary, it is frankly and appropriately conceded that the 'trial judge was most scrupulous in observing the legal forms and technical requirements of the law', and that he very properly limited the hearing 'to the matters charged in the warrant and refused to allow the Solicitor to make any amendments'.

The facts of the case will be more fully referred to in the discussion of the appellant's questions, but in order that the background of the case may be understood, it should be said that the evidence shows that the building, to which reference has hereinbefore been made, is situated near the gate of the State Fair Grounds in the proximity of Columbia, and that under the same roof there is at the front thereof the restaurant, which was operated by the defendant, and for which he paid a rental of $75 per month; and that directly back of this restaurant, there is a large room which was equipped and constantly used for gambling purposes; and at the time of the investigation above mentioned, and the raid incident thereto, was being operated by one Bill Huff. There was an entrance from the restaurant to the gambling room through a hall and a door entering the room; and there was another door entering the gambling room from the outside. There was also, to the rear of the gambling room, what is designated in the testimony as the kitchen; at the back of which it was testified that the defendant stored the beer used by him in connection with the restaurant. And connected with the kitchen was a private dining room.

We come now to the first question posed in the appellant's brief, which is as follows:

1. Was there sufficient evidence that the defendant failed to avoid 'persons or places of disreputable or harmful nature' to warrant a revocation of the defendant's probation?

As we have already stated, the issuance of the warrant for the revocation of the parole immediately arose out of an investigation which was made by the South Carolina Probation and Parole Board of the defendant's place of business and...