Opinion
34841.
DECIDED OCTOBER 10, 1953.
Revocation of probation sentence. Before Judge Lilly. Echols Superior Court. July 24, 1953.
George Thomas, for plaintiff in error.
J. B. Edwards, Solicitor-General, contra.
1. Slight evidence is sufficient to sustain the revocation of a probation sentence.
2. A null and void proceeding cannot be urged as a defense to valid proceedings, under the record of this case.
DECIDED OCTOBER 10, 1953.
At the regular March term, 1953, of the Superior Court of Echols County, the defendant pleaded guilty to the offense of public drunkenness. He was sentenced to pay the costs and to serve twelve months on the public works, and was put on probation so long as he complied with the terms of the probation sentence. On July 3 following, the Judge of the Superior Court of Echols County, without compliance with the provisions set out in Code § 27-2705, as to procedure, revoked the probation sentence. There being no facilities for keeping prisoners in Echols County, the defendant was sent to the county jail of Lowndes County in Valdosta, Georgia, by arrangements between the two counties.
On the following July 8, the defendant presented to Hon T. N. Holcombe, Jr., Ordinary of Lowndes County, his petition for a writ of habeas corpus. The petition for such writ set forth that the provisions for the revocation of a probation sentence had not been complied with by the Judge of the Superior Court of Echols County, Georgia, and that for this reason the revocation of the probation sentence was null and void. The ordinary granted the writ, and after hearing evidence on July 17, 1953, discharged the defendant. The solicitor-general of the judicial circuit in which Echols County is located, was notified of the hearing on the writ. On the same date on which the defendant was discharged by the ordinary, the solicitor-general brought an application under the provision of the said Code section, to revoke the probation sentence of the defendant imposed on the said date of March 11, 1953. On this application the provisions of procedure set out in the Code section as to the revocation of the probationary sentence were met. The hearing was set for July 24, 1953. On the date of the hearing, the defendant presented a special plea and a motion to dismiss the revocation proceedings upon the ground, among others, that the defendant was being tried twice for the same offense. Counsel for the defendant alleged that the State's remedy was by appeal or certiorari from the decision of the Ordinary of Lowndes County, and that the judge of the superior court had no jurisdiction in passing the order on July 17, 1953, after the ordinary had released the defendant on the writ of habeas corpus.
The court overruled the special plea and motion to dismiss the revocation proceedings of July 17, 1953. The judge also passed an order reciting that his order passed on July 3, 1953, was before the order on habeas corpus proceedings was vacated and set aside. To this order and judgment the defendant filed exceptions pendente lite, which were duly certified. The court then proceeded to hear evidence on the petition of July 17, 1953, as to whether or not the defendant had violated the original probation of March 11, 1953. After hearing the evidence, the court revoked the probation sentence and passed an order requiring the defendant to serve the remainder of his twelve months' sentence on the public works. The defendant assigns error here on his exceptions pendente lite and on the final judgment of the court revoking the defendant's probation sentence.
1. The original probation sentence, signed March 11, 1953, omitting the formal parts reads:
"1. That the defendant shall indulge in no unlawful, disorderly, dishonorable, injurious, or vicious habits, or conduct, and shall avoid places or persons of disreputable or harmful character.
"2. That the defendant shall report to Tinian Register as probation officer in this case, and shall be subject to the orders of the probation officer and the court.
"3. That the defendant shall not leave the jurisdiction of the court without its permission.
"4. That the defendant shall not indulge in intoxicating liquors, wines, or beer by drinking same or otherwise, or violate any law for a period of twelve months.
"5. That the court reserves the right to exercise its discretion in term or in vacation, and with or without notice to the defendant, to revoke this order suspending sentence of the defendant, and to require him to serve his sentence in terms of the law."
The evidence on the hearing of the revocation proceedings on July 24, 1953, showed, among other things, that, during the period of the probation sentence, the defendant was in a drunken condition at a picture show; that he was "cursing and carrying on . . . disturbing the people in the show" to such an extent that the manager called on an officer concerning it. The officer threatened to lock up the defendant at that time, and finally had someone take the defendant home. This was sufficient evidence to sustain the revocation of the probation sentence on the part of the court. See Sparks v. State, 77 Ga. App. 22 ( 47 S.E.2d 678), which is authority to the effect that the court did not abuse its discretion in the instant case in revoking the probation sentence. Slight evidence will support the judgment of revocation. See Waters v. State, 80 Ga. App. 104 (4) ( 55 S.E.2d 677). There are many other decisions to the same effect, which we do not deem it necessary to cite here.
2. With reference to the exceptions pendente lite, these exceptions are so interrelated with the exceptions on the final judgment of revocation dealt with above that they need little comment. We might state in this connection, however, that the petition for the writ of habeas corpus to the Ordinary of Lowndes County stated that the order of July 3, 1953, was "absolutely null and void." We think counsel is correct in this respect. If the proceedings were null and void, they were a nullity. Being a nullity under the provisions of Code § 27-2705, they cannot be urged as a valid reason for the petition in conformity with the provisions of that section. There is no merit under the assignments of error in the exceptions pendente lite.
Judgment affirmed. Townsend and Carlisle, JJ., concur.