Opinion
33199.
DECIDED SEPTEMBER 21, 1950.
Revocation of probation; from Eastman City Court — Judge Franklin. May 27, 1950.
A. Russell Ross, for plaintiff in error.
D. D. Smith, Solicitor, contra.
When, after due notice, the trial judge conducts a hearing upon the question of revocation of a probationary sentence, he is not bound by the same degree of evidence as in the first instance, but has a wide discretion. Where there is some evidence to support the judgment revoking such probationary sentence, the judgment will be affirmed by this court.
DECIDED SEPTEMBER 21, 1950.
J. C. Atkinson, on February 7, 1950, entered a plea of guilty in the City Court of Eastman to an accusation charging him with public drunkenness. He was sentenced to serve 12 months in a public-works camp, said sentence to be served on probation upon payment of a $100 fine and conditioned upon his leading a correct life and violating no law during the period of said sentence. On May 26, 1950, a hearing in the nature of a proceeding to revoke the probation sentence was had before the Judge of the City Court of Eastman, the defendant having waived notice of petition and rule nisi. An officer of the State Highway Patrol testified: that he and a deputy sheriff of Dodge County went to Augusta, Georgia, for the purpose of returning the defendant and his codefendant, Mrs. Gerald Moore, also serving a probation sentence, to the City Court of Eastman; that they entered Mrs. Moore's apartment and found a double bed which appeared to have been slept in by two people; that from the kitchen it appeared that three people had eaten a meal there; that Mrs. Moore had a small daughter; that the defendant's shotgun and pants were in Mrs. Moore's apartment, and that she asked the defendant, on being arrested, what they should do about the groceries, to which he replied, "Honey, we will just leave them." Photographs of the defendant and Mrs. Moore taken together before their conviction were introduced in evidence. Both parties were married and the family of each lived in Eastman, Georgia. Both parties had lived in Eastman prior to their conviction. They testified to the effect that they were occupying separate apartments on the same floor of a two-story apartment house in Augusta, and denied that they were living together. The defendant denied that he had broken any condition of his probation. After hearing the evidence, the trial court revoked the probation sentence, and this judgment is assigned as error.
Under the provisions of Code, § 27-2705, a person placed on probation shall maintain a correct life. Upon his failure to do so, the court may issue a warrant directing his arrest and, after due examination, may revoke the probation if there is any evidence that the conditions of the probation have been violated. As stated in Allen v. State, 78 Ga. App. 526, 528 ( 51 S.E.2d 571): "In determining this question 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."
In such cases this court will interfere only when it is apparent that there has been a manifest abuse of the court's discretion. See Olsen v. State, 21 Ga. App. 795 ( 95 S.E. 269).
The evidence as to immorality between the parties is both slight and circumstantial, but it is sufficient, when considered in connection with all the circumstances of the case, to authorize the judge in the exercise of his discretion to revoke the probationary sentence.
Judgment affirmed. MacIntyre, P. J., and Gardner, J., concur.