Eastwood, Jayne and Francis.
The present appeal relates to the revocation of the probation previously granted to the defendant and the imposition upon him of the sentence of imprisonment.
On April 10, 1953 the defendant entered in the Mercer County Court a plea of non vult to an accusation alleging that on March 17, 1953 he unlawfully and knowingly had in his possession lottery slips contrary to the provisions of N.J.S. 2 A:121-3(b). On May 22, 1953 he was sentenced to confinement in the New Jersey State Prison for a maximum term of three years and a minimum term of two and one-half years. The execution of the prison sentence was
suspended and the defendant was accorded probation for the period of five years and required to pay a fine of $1,000.
In announcing the sentence the judge in part remarked:
"Well, Mr. Pollastrelli, you are now forty-five years of age. You have spent the greater part of your life in making money the easy way, and not working for it; that is, laboriously.
You have had quite a lot of experience in penal institutions which apparently hasn't changed your outlook on life at all until perhaps recently."
Among the promulgated written rules governing the defendant's probation and forthwith delivered to him by the chief probation officer was the third, the part of which of present pertinency reads: "The probationer must keep away from evil associates * * *."
On September 1, 1953 the chief probation officer, doubtless motivated by the report of a trooper of the State Police, resolved that the defendant had violated the above-mentioned rule of his probation and caused a warrant to issue for the defendant's arrest. On September 11, 1953 notice was served upon the defendant of the time and place of a hearing before the judge of the Mercer County Court at which he would be charged with violating the terms of his probation, upon the accusation: "That you have associated with persons of disreputable or harmful character -- namely, one James Christy, a known gambler." N.J.S. 2 A:168-2.
A hearing was conducted before the judge at which the defendant was represented by able counsel; the testimony of witnesses and of the defendant was received and exhibits introduced. Upon a consideration of the evidence and its credibility, the judge resolved that the suspension of the prison sentence should be revoked and terminated. N.J.S. 2 A:168-4. A conformable order was entered in the County Court on October 2, 1953, from which the defendant prosecutes the present appeal.
Obviously this appeal does not introduce the question whether probation is inherently a matter of clemency and grace and whether consequently the defendant possessed any ...