Bunn v. State
Bunn v. State
Opinion of the Court
On January 22,1974, Tommy L. Bunn was sentenced to ten years for armed robbery with one year to serve and the balance probated. He now appeals from an order of the Superior Court of Cobb County which revoked his probation. The trial court found that he violated two counts of his probation in that he violated a criminal law of the State of Georgia and that he had associated with persons of criminal repute and character.
1. In his first two enumerations of error, appellant
2. Appellant also complains that the trial court erred in introducing over objection testimony of arresting police officers as to conversations that they had with the alleged victim of the crime who was not present at the probation revocation hearing. The trial court correctly ruled that the police officer’s testimony as to conversations that they had \Vith the alleged victim was admissible. Although it is not clear from the record whether the trial judge admitted the conversations as part of the res gestae (Code Ann. § 38-305) or to explain the officer’s conduct (Code Ann. § 38-302), the trial court could clearly find that the evidence was admissible to explain conduct. Appellant argues that thiá testimony should not have been given any probative value because it is not admissible as part of the res gestae. "Even if the testimony had been objectionable, since (the judge was acting as both judge and jury, it must be presumed that he 'has sifted the wheat from the chaff and selected the legal testimony from that which is illegal and incompetent,’ unless from the judgment itself it appears that consideration was given to testimony that should have been excluded. [Cits.]” Schenck v. State, 128 Ga. App. 270, 271 (196 SE2d 362) (1973). As approximately only forty-five minutes had elapsed between the time the victim was cut with a knife and robbed and his conversation with the officer, we believe that the trial judge could have considered this testimony as part of the res gestae. "No precise time can be fixed a priori when the res gestae ends, but each case must turn on its own
3. Appellant also contends that there was no admissible evidence produced at trial regarding the violation of any criminal law. We disagree with this contention. In order to revoke probation, it is not required that the court be convinced beyond a reasonable doubt that defendant has violated a condition of his probation; slight evidence is both essential and sufficient. Sellers v. State, 107 Ga. App. 516 (130 SE2d 790) (1963). The arresting officers testified that they responded do a call that a man had been cut with a knife and robbed of a twenty dollar bill. When they reached the victim, they noticed that he had a cut on his right forearm and his shirtsleeve was bloody. He reported that he was hitchhiking on Interstate 85 and was picked up by three white men in a yellow and white 1958 Chevrolet automobile which had a logging-type chain dragging from its rear bumper. The men threatened him with a knife and robbed him of twenty dollars in cash and forced him to leave his camping gear in the rear seat of the automobile. As the victim was not seriously hurt, he accompanied the officers in their search. Appellant’s automobile, which matched the description given by the victim and contained three white men, was spotted, identified, and stopped. A sleeping bag and other camping gear were found lying on the rear seat and a bloodstained knife was on the floor. A twenty dollar bill was found in the breast pocket of appellant’s shirt. Clearly, there was more than slight evidence that appellant had violated a criminal law.
4. Appellant also contends that the trial court erred in revoking his probation on the grounds that he associated with persons of known criminal repute and character. The evidence indicates that the brother of
Judgment affirmed.
Concurring Opinion
concurring in the judgment only.
I concur in the judgment only, because I cannot agree with the conclusion reached by the majority in Division 4. I realize the Georgia appellate courts have gone a long way with probation revocation decisions. See Johnson v. State, 142 Ga. App. 124 (235 SE2d 550) (1977) in which I dissented; affirmed Johnson v. State, 240 Ga. 526 (1978). But to hold that an individual violates that portion of his probation that prohibits him from associating with
Concurring Opinion
concurring specially.
While I fully concur in the judgment, it appears appellant’s enumerations of error and brief indicate an underlying contention that a probation revocation hearing should be governed by the same rules of evidence that apply to the trial in chief. This contention is misplaced. I have seen many other cases come to this court under similar contentions. "At a revocation hearing after due notice 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, and it is not necessary that the evidence support the finding beyond a reasonable doubt or even by a preponderance of the evidence. The trial judge is the trior of the facts and has a very wide discretion.” Cooper v. State, 118 Ga. App. 57 (162 SE2d 753). This is as it should be because the trial judge has exercised a discretion in placing a convicted person on probation in the first instance. No person convicted of a crime has the right to have his sentence probated. A trial judge in the exercise of sound discretion may revoke probation upon the slightest degree of evidence or under the "any evidence” rule. See Barlow v. State, 140 Ga. App. 667 (231 SE2d 561).
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