Opinion
No. 35108
Decided December 18, 1957.
Probation — Procedure against defendant arrested while on probation — Section 2951.09, Revised Code — "Judicial inquiry" — Strict or formal trial not required — Notice of hearing — Summary and informal inquiry sufficient, when — Evidence which may be considered — Court limited by sound judicial discretion.
APPEAL from the Court of Appeals for Defiance County.
Defendant, Luera, appellee herein, was indicted for having illegal possession of "a certain narcotic drug, to wit, heroin." His plea of "not guilty" upon arraignment was later changed to "guilty," and he was sentenced to the Ohio Penitentiary for a period of not less than two nor more than 15 years. The imposition of sentence was suspended, and defendant was placed on probation upon the conditions that he report periodically to the sheriff's office, that he violate no ordinance or statute, and that he not leave Defiance County without express permission of the court.
Later Luera was subpoenaed as a witness for the prosecution in another criminal case ( State v. Perez) before the same trial judge and involving a violation of law regulating traffic in narcotics. As such witness, Luera gave answers contradictory to signed statements made by him when questioned by a deputy sheriff prior to his indictment on the charge of illegally possessing narcotics. He became evasive and at times refused to answer questions, on the ground that his testimony might incriminate him. When instructed by the court to answer such questions, his answers were, at times, evasive, as "I don't know" or "I can't remember." When asked whether Perez ever gave him heroin, he refused to answer on the ground of incrimination. When asked by the court, "Do you know what heroin is?," he answered, "No, Sir." He admitted making statements relative to receiving heroin from Perez.
The record discloses that Luera changed his place of residence from the city of Defiance, Defiance County, to the village of Holgate, some 14 miles distant in an adjoining county, but continued to work at a plant in Defiance County.
Thereafter the prosecuting attorney filed a motion in the present case for termination of the probation order, for the reasons that Luera was guilty of contempt of court while a witness in the Perez case; that he violated the laws of the state by committing perjury while a witness in the Perez case; and that he violated the express terms of the probation in that he removed himself from Defiance County without express consent of the court.
The trial court terminated the probation and committed defendant to the penitentiary.
On appeal to the Court of Appeals, that court reversed the order terminating the probation and committing defendant to the penitentiary. In reversing the order, the Court of Appeals held that the alleged ground for termination, that defendant was guilty of contempt of court, was without merit; that the record fails to show defendant committed perjury; and that the claim he violated the terms of the probation by changing his residence to Henry County was too trivial or technical to be worthy of notice.
The allowance of a motion for leave to appeal brings the cause to this court for review.
Mr. John E. Zimmerman, prosecuting attorney, and Mr. Edward J. Hummer, for appellant.
Mr. Roger F. Small, Jr., Mr. Otto W. Hess and Mr. George A. Meekison, for appellee.
The judgment of the Court of Appeals is reversed and that of the Court of Common Pleas affirmed, on authority of State v. Theisen, ante, 119, this day decided.
Judgment reversed.
WEYGANDT, C.J., ZIMMERMAN, STEWART, BELL, TAFT, MATTHIAS and HERBERT, JJ., concur.