{ "id": 8568006, "name": "STATE v. JOHN HENRY HEWETT", "name_abbreviation": "State v. Hewett", "decision_date": "1967-05-24", "docket_number": "", "first_page": "348", "last_page": "357", "citations": [ { "type": "official", "cite": "270 N.C. 348" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "146 S.E. 2d 666", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "266 N.C. 606", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561846 ], "opinion_index": 0, "case_paths": [ "/nc/266/0606-01" ] }, { "cite": "46 S.E. 2d 647", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "228 N.C. 615", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627737 ], "opinion_index": 0, "case_paths": [ "/nc/228/0615-01" ] }, { "cite": "198 N.E. 2d 658", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "176 Ohio St. 215", "category": "reporters:state", "reporter": "Ohio St.", "case_ids": [ 1769997 ], "opinion_index": 0, "case_paths": [ "/ohio-st/176/0215-01" ] }, { "cite": "30 Cal. Rptr. 421", "category": "reporters:state", "reporter": "Cal. Rptr.", "opinion_index": 0 }, { "cite": "96 Ariz. 302", "category": "reporters:state", "reporter": "Ariz.", "case_ids": [ 637164 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ariz/96/0302-01" ] }, { "cite": "372 U.S. 335", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1765333 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/us/372/0335-01" ] }, { "cite": "282 U.S. 531", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6932733 ], "weight": 2, "pin_cites": [ { "page": "541" }, { "page": "526" } ], "opinion_index": 0, "case_paths": [ "/us/282/0531-01" ] }, { "cite": "116 S.E. 2d 349", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "253 N.C. 195", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8623494 ], "opinion_index": 0, "case_paths": [ "/nc/253/0195-01" ] }, { "cite": "114 S.E. 2d 115", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "252 N.C. 482", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8623506 ], "opinion_index": 0, "case_paths": [ "/nc/252/0482-01" ] }, { "cite": "154 S.E. 2d 53", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "270 N.C. 241", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566904 ], "opinion_index": 0, "case_paths": [ "/nc/270/0241-01" ] }, { "cite": "103 S.E. 2d 376", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "248 N.C. 282", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622192 ], "opinion_index": 0, "case_paths": [ "/nc/248/0282-01" ] }, { "cite": "330 F. 2d 594", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 127956 ], "opinion_index": 0, "case_paths": [ "/f2d/330/0594-01" ] }, { "cite": "265 F. 2d 203", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1980426 ], "opinion_index": 0, "case_paths": [ "/f2d/265/0203-01" ] }, { "cite": "179 F. Supp. 669", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 410341 ], "pin_cites": [ { "page": "670" } ], "opinion_index": 0, "case_paths": [ "/f-supp/179/0669-01" ] }, { "cite": "199 F. 2d 333", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 488965 ], "pin_cites": [ { "page": "335" } ], "opinion_index": 0, "case_paths": [ "/f2d/199/0333-01" ] }, { "cite": "94 L. Ed. 1341", "category": "reporters:federal", "reporter": "L. Ed.", "opinion_index": 0 }, { "cite": "70 S. Ct. 559", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "339 U.S. 916", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 362304, 362835, 362806, 362553, 362238 ], "opinion_index": 0, "case_paths": [ "/us/339/0916-05", "/us/339/0916-01", "/us/339/0916-02", "/us/339/0916-04", "/us/339/0916-03" ] }, { "cite": "94 L. Ed. 586", "category": "reporters:federal", "reporter": "L. Ed.", "opinion_index": 0 }, { "cite": "70 S. Ct. 478", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "338 U.S. 950", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3943783, 3941703, 3944941, 3945168, 3946673, 3947864, 3944505, 3950746 ], "opinion_index": 0, "case_paths": [ "/us/338/0950-06", "/us/338/0950-04", "/us/338/0950-02", "/us/338/0950-05", "/us/338/0950-01", "/us/338/0950-03", "/us/338/0950-08", "/us/338/0950-07" ] }, { "cite": "175 F. 2d 799", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1173876 ], "pin_cites": [ { "page": "801" } ], "opinion_index": 0, "case_paths": [ "/f2d/175/0799-01" ] }, { "cite": "184 F. 2d 866", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1236364 ], "pin_cites": [ { "page": "868" } ], "opinion_index": 0, "case_paths": [ "/f2d/184/0866-01" ] }, { "cite": "91 L. Ed. 1838", "category": "reporters:federal", "reporter": "L. Ed.", "opinion_index": 0 }, { "cite": "67 S. Ct. 1302", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "331 U.S. 822", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6170304, 6170498, 6170228, 6170141, 6170398 ], "opinion_index": 0, "case_paths": [ "/us/331/0822-03", "/us/331/0822-05", "/us/331/0822-02", "/us/331/0822-01", "/us/331/0822-04" ] }, { "cite": "339 F. 2d 967", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 883878 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/f2d/339/0967-01" ] }, { "cite": "318 F. 2d 225", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 161865, 3648249 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/f2d/318/0225-01" ] }, { "cite": "115 U.S. App. D. C. 254", "category": "reporters:state", "reporter": "U.S. App. D.C.", "case_ids": [ 3648249 ], "year": 1963, "opinion_index": 0, "case_paths": [] }, { "cite": "413 P. 2d 495", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 8555866 ], "weight": 2, "year": 1966, "opinion_index": 0, "case_paths": [ "/nev/82/0156-01" ] }, { "cite": "158 F. 2d 412", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1127016 ], "weight": 2, "year": 1946, "pin_cites": [ { "page": "415" } ], "opinion_index": 0, "case_paths": [ "/f2d/158/0412-01" ] }, { "cite": "338 F. 2d 862", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 886199 ], "weight": 3, "year": 1964, "opinion_index": 0, "case_paths": [ "/f2d/338/0862-01" ] }, { "cite": "159 F. 2d 410", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1123183 ], "weight": 2, "year": 1947, "pin_cites": [ { "page": "411" } ], "opinion_index": 0, "case_paths": [ "/f2d/159/0410-01" ] }, { "cite": "348 F. 2d 885", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 857658 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/f2d/348/0885-01" ] }, { "cite": "351 F. 2d 564", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 807985 ], "weight": 2, "year": 1965, "opinion_index": 0, "case_paths": [ "/f2d/351/0564-01" ] }, { "cite": "295 U.S. 490", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 333784 ], "weight": 3, "year": 1935, "opinion_index": 0, "case_paths": [ "/us/295/0490-01" ] }, { "cite": "287 U.S. 216", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 369836 ], "weight": 2, "year": 1932, "opinion_index": 0, "case_paths": [ "/us/287/0216-01" ] }, { "cite": "100 S.E. 2d 315", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "247 N.C. 55", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625078 ], "opinion_index": 0, "case_paths": [ "/nc/247/0055-01" ] } ], "analysis": { "cardinality": 1063, "char_count": 25646, "ocr_confidence": 0.546, "pagerank": { "raw": 2.4010385399384885e-06, "percentile": 0.9963096304070237 }, "sha256": "83efb28c732ac9ab868559f10ff4ce813d87f3402649a041f9337e9fad1010be", "simhash": "1:58d9dfe906a3f04c", "word_count": 4377 }, "last_updated": "2023-07-14T21:31:56.885447+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE v. JOHN HENRY HEWETT." ], "opinions": [ { "text": "PARKER, C.J.\nDefendant through his counsel, Mr. Lee, assigns' as error that Judge Carr failed to- appoint counsel to represent defendant, an indigent, at the hearing before him, though the defendant had requested counsel, and that his failure to do so was a flagrant abuse of discretion. This assignment of error is overruled.\nOrdinarily, the Supreme' Court will not consider questions not-properly presented by objections'duly made, exceptions duly entered, and assignments of error properly set out, though it may do so in exceptional circumstances in the exercise of its supervisory and-controlling jurisdiction over the proceedings of the other courts vested in it by Article IV, section 10(1), of the North Carolina Constitution. To clarify an important question of practice frequently arising in the trial courts of this State, this Court, by .virtue of the constitutional supervisory and controlling power vested in it over the other courts, deems it appropriate to consider defendant\u2019s assignment of error, as if an exception had been noted in apt time by defendant. In re Renfrow, 247 N.C. 55, 100 S.E. 2d 315; 1 Strong\u2019s N. C. Index, Appeal and Error,. \u00a7\u00a7 2, 19, and Supplement thereto.\nA person convicted of crime is not given a right to probation by the United States Constitution. Burns v. United States, 287 U.S. 216, 77 L. Ed. 266 (1932); Escoe v. Zerbst, 295 U.S. 490, 79 L. Ed. 1566 (1935); Brown v. Warden, U. S. Penitentiary, 351 F. 2d 564 (7th Cir. 1965); Welsh v. United States, 348 F. 2d 885 (6th Cir. 1965); Gillespie v. Hunter, 159 F. 2d 410 (10th Cir. 1947); Jones v. Rivers, 338 F. 2d 862 (4th Cir. 1964); Bennett v. United States, 158 F. 2d 412 (8th Cir. 1946); Shum v. Fogliani, ..... Nev..... , 413 P. 2d 495 (1966).\nProbation or suspension of sentence comes as' an act of grace to one convicted of crime. Escoe v. Zerbst, supra. The rights of an offender in a proceeding to revoke his conditional liberty under probation are not coextensive with the Federal constitutional rights of one on trial in a criminal prosecution. Hyser v. Reed, 115 U.S. App. D. C. 254, 318 F. 2d 225 (1963); Richardson v. Markley, 339 F. 2d 967 (7th Cir. 1965); Brown v. Warden, U. S. Penitentiary, supra; Jones v. Rivers, supra.\nIn Welsh v. United States, supra, defendant, pleaded guilty to various Federal offenses. He was not sentenced at the time the pleas were entered. Later, he appeared in court in person and by counsel, at which time imposition of sentences was suspended- and - he was placed on probation for a' period of five, years in each case. At a later hearing probation was revoked and the. sentences were imposed. On 5 June 1964 defendant filed a motion to vacate the sentences, the district judge denied the motion without a hearing, and an appeal followed. The court said in part:\n\u201cPetitioner also contends that he'was deprived of his constitutional right to assistance of counsel at the hearing when probation w\u00e1s revoked. In addition'to'the fact that petitioner made no request for counsel at that'hearing, the constitutional right to the assistance of counsel in' the defense of a criminal prosecution, given by the Sixth 'Amendment,' does riot- apply to a hearing on \u00e1 motion to revoke probation. Bennett v. United States, 158 F. 2d 412, 415, C.A. 8th, cert. denied, 331 U.S. 822, 67 S. Ct. 1302, 91 L. Ed. 1838; Gillespie v. Hunter, 159 F. 2d 410, 411, C.A. 10th; United States v. Huggins, 184 F. 2d 866, 868, C.A. 7th; Crowe v. United States, 175 F. 2d 799, 801, C.A. 4th, cert. denied 338 U.S. 950, 70 S. Ct. 478, 94 L. Ed. 586. rehearing denied, 339 U.S. 916, 70 S. Ct. 559, 94 L. Ed. 1341; Richardson v. United States, 199 F. 2d 333, 335, C.A. 10th; Cupp v. Byington, 179 F. Supp. 669, 670, S.D. Ind. See: Gilpin v. United States, 265 F. 2d 203, and cases cited at p. 204, C.A. 6th; Barker v. State of Ohio, 330 F. 2d 594, and cases cited, C.A. 6th.\n\u201cJudgment affirmed.\u201d\nTo the same effect Jones v. Rivers, supra.\nA person convicted of crime is not given a right to probation under the North Carolina Constitution. G.S. 15-197 provides in relevant part: \u201cAfter conviction or plea of guilty or nolo contendere for any offense, except a crime punishable by death or life imprisonment, the judge of any court of record with criminal jurisdiction may suspend the imposition or the execution of a sentence and place the defendant on probation. . . .\u201d Probation relates to judicial action taken before the prison door is closed, whereas parole relates to executive action taken after the door has closed on a convict. G.S. 15-199 provides, among other things, that as a condition of probation the probationer shall \u201cavoid injurious or vicious habits.\u201d G.S. 15-200.1 provides in relevant part: Upon its findings of fact that a valid condition of probation was wilfully violated, the Superior Court shall enforce the judgment of the lower court, with an exception not pertinent here. Whether defendant has violated valid conditions of probation is not an issue of fact for a jury, but is a question of fact for the judge to be determined in the exercise of his sound discretion. S. v. Robinson, 248 N.C. 282, 103 S.E. 2d 376.\nWhen a person accused of crime has been tried, defended, sentenced, and, if he desires, has exhausted his rights of appeal, the period of contentious litigation is over. Although revocation of probation results in the deprivation of a probationer's liberty, the sentence he may be required to serve is the punishment for the crime of which he had previously been found guilty. The inquiry of the court at such a hearing is not directed to the probationer\u2019s guilt or innocence, but to the truth of the accusation of a violation of probation. The crucial question is: Has the probationer abused the privilege of grace extended to him by the court? When a sentence of imprisonment in a criminal case is suspended upon certain valid conditions expressed in a probation judgment, defendant has a right to rely upon such conditions, and as long as he complies therewith the suspension must stand. In such a case, defendant carries the keys to his freedom in his willingness to comply with the court\u2019s sentence.\nA proceeding to revoke probation is not a criminal prosecution, and we have no statute in this State requiring a formal trial in such a proceeding. Proceedings to revoke probation are often regarded as informal or summary. The courts of this State recognize the principle that a defendant on probation or a defendant under a suspended sentence, before any sentence of imprisonment is put into effect and activated, shall be given notice in writing of the hearing in apt time and an opportunity to be heard. S. v. Duncan, 270 N.C. 241, 154 S.E. 2d 53, and cases cited. Upon a hearing of this character, the court is not bound by strict rules of evidence, and the alleged violation of a valid condition of probation need not be proven beyond a reasonable doubt. S. v. Robinson, supra; S. v. Morton, 252 N.C. 482, 114 S.E. 2d 115; S. v. Brown, 253 N.C. 195, 116 S.E. 2d 349; Supplement to 1 Strong\u2019s N. C. Index, Criminal Law, \u00a7 136.\nAll that is required in a hearing of this character is that the evidence be such as to reasonably satisfy the- judge in the exercise of his sound discretion that the defendant has willfully violated a valid condition of probation or that the defendant has violated without lawful excuse a valid condition upon which the sentence was suspended. Judicial discretion implies conscientious judgment, not arbitrary or willful action. It takes account of the law and the particular circumstances of the case, and \u201cis directed by the reason and conscience of the judge to a just result.\u201d S. v. Duncan, supra; Langnes v. Green, 282 U.S. 531, 541, 75 L. Ed. 520, 526; S. v. Robinson, supra; S. v. Morton, supra; S. v. Brown, supra.\nG.S. 15-4.1 is not applicable, for the simple fact that it applies to the appointment of counsel for indigent defendants in criminal trials. It does not apply to the appointment of counsel for indigent-defendants in a proceeding to revoke probation.\nDecisions concerned with the constitutional right to counsel of an accused at various stages of criminal prosecutions are not controlling. Cf. Gideon v. Wainwright, 372 U.S. 335, 9 L. Ed. 2d 799.\nWe do not find in the United States Constitution or in the North Carolina Constitution any constitutional right to counsel for a defendant in a proceeding to revoke probation. We find no statute in this State giving a defendant the right to counsel in such a proceeding. The difference between hearings as to whether probation shall be revoked and criminal trials is so great that procedural requirements in criminal trials, such as the right to counsel, ought not to be imposed in absolute terms in- hearings to revoke probation. A possible extension to hearings upon whether' probation should\u2019 be r\u00e9voked of an absolute and universal requirement of 'counsel \u25a0 at 1 every. such hearing ought not to be taken without a legislative determination of the impact of such a requirement on the probation system.\nThis is said in 24 C.J.S., Criminal Law 1618(11) d (d), p. 917, in respect to representation by counsel in a hearing to revoke probation: \u201cIt is not required that the probationer be represented by counsel at the hearing, or that he be informed that he had a right to counsel, although under some statutes he is entitled to be represented by counsel.\u201d A number of cases are cited in support of the text. In accord: State v. Edge, 96 Ariz. 302, 394 P. 2d 418; People v. Wimberly, 215 C.A. 2d 538, 30 Cal. Rptr. 421; Shum v. Fogliani, supra; Kennedy v. Maxwell, 176 Ohio St. 215, 198 N.E. 2d 658.\nDefendant assigns as error that there was an abuse of discretion on the part of Judge Carr in failing to continue the hearing of the proceeding to revoke probation. This assignment of error has no exception to support it, except, under the assignment of error. This Court has repeatedly held that an exception which appears no where in the record, except under the assignment of error, is ineffectual, since an assignment of error must be supported by .an exception duly noted. However, an examination of the record before us shows that the order revoking probation recites in substance that a bill of particulars setting forth the alleged violation of the condition of probation was duly served on the defendant on 28 November 1966, \u2022and the order revoking probation was entered on 2 December 1966. The motion for continuance was addressed to the sound discretion of Judge-Carr, and no abuse \u00f3f'discretion is shown and the-ruling yvill be upheld. S. v. Culberson, 228 N.C. 615, 46 S.E. 2d 647; S. v. Ferebee, 266 N.C. 606, 146 S.E. 2d 666.\nDefendant assigns as error that there is no competent' evidence to support the judge\u2019s findings of fact; that the facts found by the judge do- n'ot support the judgment; and that errors of law appear on the face of the record.\n\u2022 Judge Carr found as a fact in his order revoking probation that defendant has willfully violated the conditions' of the probation judgment by engaging in injurious and vicious' habits as follows:\n(1) \u201cThreats to law enforcement officers: Once to Police 'Chief Freeman if he stuck his head in the police car where subject was sitting; once to the mother of Policeman Harold Fipps that he (the probationer) was going \u2018to get\u2019 Fipps; and a pattern of hostility1 to law enforcement officers in general.\u201d Police Chief Freeman testified in substance, except when quoted. Since' defendant has been on probation, one Sunday night lie walked up to the police car where Officers Heye .and Fipps had defendant. \u201cAs I walked up he made \u00e1 'statement-to Chief Heye that if-1 stuck .my head in the car he would cut it- off.\u201d. The 'finding of fact that probationer said to the mother of Policeman Harold Fipps that he was going \u201cto get\u201d Fipps is based, on hearsay, and has no competent evidence in the record to support, it. There is plenary competent evidence from Policemen Heye, Joyner, Fipps, and Freeman to support the finding that probationer has exhibited a pattern of hostility to law enforcement officers in general. It is also supported by defendant\u2019s testimony: \u201cI did threaten to hit Harold Fipps [an officer] in the mouth. On the night they picked me up for cutting Brown, I was trying to get on Rudolph Norris, the officer. He has done something to me. It is a long story. He had not done anything to me on that night. He walked in and asked me what they had me for. It kind of made me mad and I was already mad to start with. The reason I jumped on him was because I was mad.\u201d\n(2) The court found as a fact that defendant has willfully violated the terms of probation by engaging in injurious and vicious habits by committing assaults upon persons, to wit, by slapping on the street a salesman from Charlotte, by drawing a knife and cutting Terry Brown on the finger, and by throwing a bottle at a passing car. These findings of fact find support in the testimony of defendant as follows: \u201cYes, I work for Mrs. Ward part time. I did-not slap her down. I slapped her. across the face and she slapped me. I was not .drunk. I was about to have a nervous breakdown. I do not remember that she told me to go home because I had had too much to drink. I did walk right\u2019.out of the store and slap a man I had never seen .before. He had not done anything to me.\u201d This finding of fact also is supported by the testimony of Policeman Joyner as follows: \u201cI was present when he [defendant] had his altercation with this Negro in Chadbourn. I came on the scene and John Henry and Terry Brown were having words or swinging at each other. - Officer Heye was with me. John Henry and' this Negro were standing on the street. John Henry had his pocketknife in his hand. I didn\u2019t actually see a blow or who did the cutting or how the colored gentle-, man was cut.. One of his fingers was cut and bleeding.\u201d There is no evidence but hearsay in the record that defendant threw a bottle at a passing car. However, defendant testified in substance that he got into an altercation-with people in a car from South Carolina and, one of them-threw a bottle and hit-him on the arm and bruised it badly, and\u2018then he went, and got a bottle and threw it at him, :but , he contends that he acted in self-defense. \u2022 ...\n. ' Among its other findings of .fact-the court\u2019found that probationer-had engaged in. inj\u00fcrious and vicious habits. This finding finds support in the: testimony of;'Officer Joyner, who testified: \u201cI see John; Henry about seven days a week. . . . And numerous times T -have.' seen him when in my opinion he had been drinking some kind of alcoholic (sic) or either on drugs. I couldn\u2019t tell. This has been since he was put on probation in \u201964.\u201d This finding also finds support in the testimony of Officers Fipps as follows: \u201cHe [probationer] is a dangerous man when he is drinking. He is a big man.\u201d This finding of fact finds support in the testimony of Officer Heye, who testified as follows: \u201cI was there when he was tried in Justice of Peace Wilson\u2019s court last year. It would be hard to describe what hap-' pened. He was tried for assaulting H. L. Buffkin. When one witness in particular testified John Henry interrupted the trial by telling the witness that it wasn\u2019t so. They became argumentative and next thing' I knew we had to remove John from the courtroom. . . . During the same month he was brought back for a hearing. At the time I was referring to Attorney Wilton Hunt was there. I do not know whether he attempted to slug Attorney Hunt, but there was a lot of fist swinging. . . . This was the case of the peace warrant and the assault with a pocketknife on H. L. Buffkin. . . . The altercation was not between he (the defendant) and Buffkin. It was with the witness Shelton Wade Anderson who was testifying for Buffkin. John made a statement to Shelton Wade and they became argumentative. Shelton Wade Anderson is known as Snuffy Anderson. When they became argumentative they soon came to blows. . . . There was one blow after the other and John Henry was calmed down and-ordered to be taken out of'the courtroom.\u201d \u25a0\nSome of Judge Carr\u2019s findings of fact are based on hearsay evi-: dence, and should not have been considered by the judge. However,\u2019 there is enough competent evidence in the record to support the\" judge\u2019s crucial findings of fact that the defendant has willfully failed' to avoid injurious or vicious habits as found by him with particu-\" larity as above set out, and these crucial findings of fact support the judgment revoking probation and putting the prison sentences into-effect. i\nIn determining whether the evidence warrants the revocation of probation or a suspended sentence, the credibility of the witnesses and the evaluation and weight of their testimony are for the judge. S. v. Robinson, supra. There is competent evidence \u2022 in the record such as to reasonably satisfy the judge in the exercise of his sound' discretion that probationer has violated a valid condition upon which his sentences were suspended. The' condition that he avoid injurious or vicious habits is a valid condition of probation, G.S. 15-199, and no abuse of discretion on -Judge Carr\u2019s'part is shown in revoking the probation \u2022 judgment and putting the . prison sentences into effect. \u201c ' \u2022 ' : \" \u2019 \u2019 \" '\u25a0\u25a0\u25a0 \u25a0 <'-y ' 1 .. .1\nCompetent evidence in the record is plenary that defendant, particularly when drinking or taking drugs, engages in injurious and vicious habits, is dangerous, and when in such condition is hostile to police officers who attempt to restrain him. The original sentence, when defendant was put on probation, on the misdemeanor charges was six months in prison \u201cto take effect at a time and as further ordered by the court.\u201d This seems irregular, but defendant has suffered no prejudicial harm by the order revoking probation and putting the sentences of imprisonment into effect, because that sentence of six months imprisonment is to run concurrently with the sentence of imprisonment for not less than five years nor more than seven years upon his pleas of guilty to the felony indictments.\nNo error of law appears on the face of the record proper. The order of the lower court is\nAffirmed.", "type": "majority", "author": "PARKER, C.J." } ], "attorneys": [ "Attorney General T. W. Bruton and Staff Attorney Theodore C, Brown, Jr., for the State.", "J. B. Lee, Jr., for defendant appellant." ], "corrections": "", "head_matter": "STATE v. JOHN HENRY HEWETT.\n(Filed 24 May, 1967.)\n1. Appeal and Error \u00a7 2\u2014\nThe Supreme Court may exercise its constitutional supervisory jurisdiction to clarify an important question of practice, even though the question is not properly presented by exception duly entered and an assignment of error properly set out.\n2. Criminal law \u00a7 135\u2014\nProbation or suspension of sentence is not a right granted by either the Federal or State Constitutions, but is a matter of grace conferred by statute in this State. G.S. 15-197.\n3. Same\u2014\nProbation relates to judicial action before imprisonment, while parole relates to executive action after imprisonment.\n4. Criminal Haw \u00a7 136\u2014\nA proceeding to revoke probation is not a criminal prosecution but is a proceeding solely for the determination by the court whether there has been a violation of a valid condition of probation so as to warran* putting into effect a sentence theretofore entered, and while notice in writing to defendant and an opportunity for him to be heard are necessary, the court is not bound by strict rules of evidence, and all that is required is that there be competent evidence reasonably sufficient to satisfy the judge in the exercise of a sound judicial discretion that the defendant had without lawful excuse wilfully violated a valid condition of probation.\n5. Same; Constitutional haw \u00a7 32\u2014\nA defendant has no constitutional right to be represented by counsel at a hearing to determine whether his probation should be revoked for his wilful violation of \u00e1 lawful condition of probation, and G.S. 15-4.1 is not applicable.\n6. Criminal Haw \u00a7 154\u2014\nAn exception which appears nowhere except under the assignments of error is ineffectual.\n7. Criminal Haw \u00a7 136\u2014\nWhere the record discloses that a bill of particulars setting forth defendant\u2019s alleged violation of condition of probation was duly served upon \u25a0 defendant, and that order revoking probation was' not entered until the hearing after notice some four days thereafter, no abuse of discretion is shown in the refusal by the court of defendant\u2019s motion for continuance.\n8. Same\u2014\nDefendant was put on probation on condition that he not engage in injurious and vicious habits. Upon the hearing to revoke probation there was plenary competent evidence that on repeated occasions defendant had threatened law enforcement officers and had wilfully engaged in assaults upon specified persons, etc. Held: The evidence supports the court\u2019s finding that defendant had engaged in injurious or vicious habits in violation of the terms of probation and such finding supports the court\u2019s judgment revoking defendant\u2019s probation.\n9. Same\u2014\nIn determining whether the evidence warrants revocation of probation, the credibility of the witnesses and the evaluation and weight of their testimony are for the judge, and, if there is competent evidence in the record to support the court\u2019s finding of violation of condition of probation, the fact that the court also admitted incompetent hearsay evidence is not fatal, the crucial findings being supported by competent evidence.\n10. Criminal Law \u00a7 164\u2014\nWhere sentences of defendant are' made to run concurrently, any error relating to the shorter sentence alone cannot be prejudicial.\nAppeal by defendant from Carr, J., November 1966 Criminal Session of Columbus.\nAt the September 1964 Session of Columbus County Superior Court, defendant, who was represented by his court-appointed attorney J. B. Lee, Jr., an able and experienced member of the Columbus County Bar, entered pleas of guilty to two indictments, Nos. 259-E and 260-E on the docket, each indictment charging the defendant with a felonious breaking and entry into a store building and larceny. At the same time, defendant, who was represented by his court-appointed attorney J. B. Lee, Jr., entered pleas of guilty to an escape from jail as charged in docket No. 229-G, and injury to a building as charged in docket No. 262-E.\nThe judgment of the court upon the pleas of guilty to the two indictments charging a felonious breaking and entry and larceny was imprisonment for a term of not less than five years nor more than seven years. The judgment of the court upon the pleas of guilty upon an escape from prison and injury to a building was imprisonment for six months \u201cto take effect at a time and as further ordered by the court.\u201d Pursuant to the provisions of G.S. 15-197 et seq., the court suspended the execution of the prison- sentences' and placed defendant on probation for a period of five years on certain conditions of probation. Among the conditions of probation, it was ordered by the court in the judgment that the defendant shall \u201cavoid injurious or vicious habits.\u201d\nAt the November 1966 Criminal Session of Columbus County Superior Court, this criminal proceeding came on to be heard upon a written verified report by Edmond 0. Wall, a State probation officer, alleging a violation of a condition of defendant\u2019s probation, to wit, that he had not avoided injurious or vicious habits. A bill of particulars alleging a violation by defendant of the condition to \u201cavoid injurious or vicious habits\u201d had been duly served on defendant prior to the hearing, as provided by G.S. 15-200.1. Defendant, at the beginning of the hearing before Judge Carr, requested Judge Carr to appoint counsel to appear for him, and Judge Carr denied his request. Defendant did not except. After hearing the evidence in the case presented by- the \u25a0 State and the testimony of defendant, Judge Carr entered an order finding as a fact that the defendant had willfully violated a condition of the probation judgment, in that he had engaged in injurious and vicious habits, and found with particularity that he had engaged in six series or acts of injurious and vicious habits. Based upon his findings of fact, he ordered in his discretion that the probation be revoked and the prison sentences be put into immediate effect. At the end of his order appears the following language: \u201cThat this probationer was in Dorothea Dix Hospital twice in 1965 because of emotional instability as appears from above findings of fact. By reason of this fact the court recommends that he be closely observed, i\u00f1 prison and given such attention, because of his tendency to become emotionally disturbed, as the circumstances require.\u201d ......\nDefendant appealed from the.order entered by Judge Carr. Judge Carr entered an order finding that defendant is an indigent and ap-: pointing J. Wilton Hunt, a member of the Columbus County Bar, to represent the defendant on appeal. Later, Bailey, Judge presiding,, entered the following orders: (1) An order allowing defendant -to give a bail bond in the sum of $7,500 pending the outcome of his' appeal; (2) an order discharging J. Wilton Hunt as defendant\u2019s attorney for the reason that there was a conflict of interest;' (3) \u2018an order appointing J. B. Lee,'Jr., to represent .the defendant and to perfect his appeal; and (4) .an order that Columbus County at its expense furnish a transcript of the record and evidence to defendant\u2019s counsel, and that the 'record arid brief of counsel on appeal should be mimeographed. Mr. Lee is the same lawyer who represented defendant at the September 1964 Session of Columbus County Superior Court.\nAttorney General T. W. Bruton and Staff Attorney Theodore C, Brown, Jr., for the State.\nJ. B. Lee, Jr., for defendant appellant." }, "file_name": "0348-01", "first_page_order": 388, "last_page_order": 397 }