Waters v. State

• Decision Date: 11 October 1949
• Docket Number: 32646.
• Citation: 55 S.E.2d 677,80 Ga.App. 104
• Parties: WATERS v. STATE.
• Court: Georgia Court of Appeals

55 S.E.2d 677

80 Ga.App. 104

WATERS v. STATE.

No. 32646.

Court of Appeals of Georgia, Division No. 2.

October 11, 1949

Syllabus by the Court.

1. Where a probationer is arrested on an order of the trial court directing that he be placed in custody until a given date and then brought before the court for examination to determine the issue of whether or not his probation shall be revoked, and such probationer is brought before the court under arrest at the time and place specified, and counsel for the probationer also appears and represents him at the hearing, it will be presumed that he had proper notice and ample opportunity to be heard, it not appearing that counsel made any motion for a continuance to allow additional time to prepare the defense.

2. In a proceeding to revoke a probation sentence under Code, § 27-2705, it is not improper for the trial court to issue an order or warrant for the arrest of the probationer and to conduct the proceeding himself.

3. In order to be a position to complain of the abridgement of the right of cross examination a party to a legal proceeding or his counsel must either ask the questions he desires to ask or state to the court what questions he desires to ask and then interpose timely objection to the ruling of the court denying the right to propound the questions.

4. In a proceeding for the revocation of a probation sentence the trial court has a wide discretion and only slight evidence will support a judgment of revocation. This court will not interfere unless a manifest abuse of this discretion appears. Allen v. State, 78 Ga.App. 526, 51 S.E.2d 571.

Ed Waters was brought before the judge of the Superior Court of the Cordele Judicial Circuit under an order issued by the said judge directing that the defendant be brought before him to show cause why a probation sentence previously imposed in Dooly County should not be revoked. The defendant was arrested in Wilcox County on this order charging him with acts in the latter county which constituted a violation of the terms of the probation sentence, and was brought before the trial judge in Crisp County where the hearing was conducted.

On February 21, 1949, the defendant had entered a plea of guilty to the charge of unlawfully manufacturing liquor in Dooly County. The trial court reduced this offense to a misdemeanor and imposed a sentence providing for twelve months at the State Farm and six months in the common jail of the county all on probation.

On April 30, 1949, the order hereinbefore referred to was issued directing that the defendant be arrested and placed in the Wilcox County jail pending the further order of the court without bail, and further directing that the defendant be brought before the court on May 7, 1949, to show cause why the probation should not be revoked. The defendant was so arrested and placed in the Wilcox County jail and held without bail until May 7, 1949. On this date he was brought before the judge and a hearing conducted to determine whether or not the probation should be revoked, and the defendant required to serve the remainder of his sentence as provided in the original sentence. On this hearing the defendant was represented by counsel.

The evidence introduced at the hearing authorized the trial judge to find that the defendant delivered two gallons of liquor to a prospective purchaser in Wilcox County during the early morning hours of a Saturday in April, 1949. At the conclusion of the hearing the judge entered an order revoking the probation and requiring the defendant to serve the remainder of his sentence inside the institutions provided in the original sentence, and this judgment is assigned as error.

Benjamin Zeesman, Cordele, for plaintiff in error.

Harvey L. Jay, Sol. Gen., Fitzgerald, for defendant in error.

TOWNSEND Judge (after stating the foregoing facts.)

1. Counsel for the defendant in error contends that the order of the trial court of April 30, 1949, was never properly served upon the prisoner, and that for this reason the revocation of the probation was erroneous. It is of course necessary to the validity of an order of revocation of parole that the probationer have notice and an opportunity to be heard. Smith v. Veach, 165 Ga. 190, 140 S.E. 356; State v. Thompson, 175 Ga. 189, 165 S.E. 34, Roberts v. Lowry, 160 Ga. 494, 128 S.E. 746. In the latter case it was held as follows:

'2. 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 of whether his...