Price, Haneman and Schettino. The opinion of the court was delivered by Schettino, J.A.D.
Appeal is from an order of the trial court dated September 25, 1957 whereby the court held that defendant violated his probation, that the probation be revoked and that defendant serve his previously imposed sentence of a minimum of one year and a maximum of three years in State Prison.
The record indicates that defendant had graduated from a New York City college and had attended a law school in New York City for approximately a year and one-half. On April 13, 1956 defendant was convicted of atrocious assault and battery, was sentenced to a term of not less than one year nor more than three years in State Prison, and was fined $500. His sentence was suspended. Defendant was placed on probation conditioned upon his continuation of psychiatric treatment at his own expense and upon his continuing to work at gainful employment.
From the date of sentencing, defendant held a succession of jobs, none of which lasted for more than six months duration. The last time that the defendant had a job was in June 1957. Thereafter defendant continued to look for employment but was unsuccessful in securing any. His mental condition seemed to have grown progressively worse during this time until in September 1957, when, upon the advice of his psychiatrist, he was committed by his family to Bergen Pines Hospital to undergo insulin and electric shock treatment. At this time his condition was diagnosed as a schizophrenic reaction, paranoid type.
Before treatment could begin, defendant, on September 25, 1957, was charged by the chief probation officer with a violation of his probation in that (a) he failed to obtain and continue at gainful employment, (b) his mental condition made control and supervision of his probation impossible, and (c) police action was required to take defendant into custody. On that day defendant by direction of the trial judge was brought before the County Court for a hearing. The record is silent as to whether any notice of this hearing was ever served on defendant. It appears that defendant
was confined in the hospital and that a police officer took him into custody and brought him before the county judge. At oral argument we were informed that his family's counsel happened to be in the courthouse the day of the hearing and counsel was therefore present at the hearing.
Dr. Lederer, a psychiatrist employed by the Bergen Pines Hospital, defendant's probation officer and defendant's mother testified. The job history of defendant was outlined; his difficulty in holding a job was stressed, although it was conceded that he had made efforts to secure employment and for a substantial part of the time had been employed. The probation officer testified that defendant had not observed the court's order to receive continuous psychiatric treatment, although this charge did not hold as to the whole period. However, the probation officer did also testify that defendant reported regularly to his probation officer, that "I would say that [defendant] made a bona fide effort to be employed during the time that he was under my supervision" and, when he was asked specifically whether he would say that defendant willfully violated the rules of probation, he stated: "No, I will not." Defendant's mother testified that defendant was at home most of the time after he was out of work and she was advised by her son's psychiatrist to have him taken to the Bergen Pines Hospital for medical treatment.
On the strength of the testimony the court revoked the probation order and imposed the original sentence. The trial court stated in its oral judgment that defendant had violated the rules of probation in failing to obtain and continue in gainful employment, that defendant had a schizophrenic paranoid condition and therefore should be hospitalized, and directed defendant to serve his sentence in State Prison with a recommendation to the warden that his confinement be in the State Hospital so that he could undergo the psychiatric treatment which was then deemed necessary. The court also stated that defendant's violation of the provision that defendant should remain employed was not willful but rather was the result of his mental condition. Defendant was taken to the State Prison.
Defendant appealed the revocation of probation and applied to the trial court for bail pending the appeal. The application was denied on October 16, 1957. He then applied to this court for release from prison confinement. The application was granted by order dated October 23, 1957, conditioned upon defendant remaining at the New Jersey State Hospital until the disposition of the appeal. Further application to this court was made for release of the defendant pending the prosecution of the appeal, and on December 9, 1957 this court issued an order remanding the matter to the trial court for rehearing on defendant's application for bail and for the taking of additional testimony.
In conformity with the order to remand, a summary hearing de novo was held on Friday, December 13, 1957, at the conclusion of which the trial court reaffirmed its original decision, finding a violation of probation and expressing a lack of confidence in the unanimous medical opinions and conclusions that defendant was not, at that time, psychotic. The trial court likewise denied (a) the application for bail, and (b) an application to permit defendant to return to the State Hospital, retaining the status set forth in our order of October 23, 1957 pending defendant's applying to the Appellate Division on the following Monday, December 16, 1957. The trial court remanded defendant to State Prison immediately.
This court, by order dated December 16, 1957, provided that the Sheriff of Bergen County release the defendant from custody on his own recognizance pending the further order of the court; that defendant, upon his release, report for psychiatric treatment to Dr. Lederer once a week until the final determination of this case, and that defendant have leave to report to any other private doctor for consultation or treatment as he might determine. This order further specified that the record of the prior hearing be supplemented by the testimony taken before the trial court on December 13.
This is a probation case, not a parole case. We emphasize that our views are limited in their application to the subject
matter of probation. See, for example, a discussion distinguishing the status of a parolee from that of a probationer in McCoy v. Harris , 108 Utah 407, 160 P. 2 d 721 (Sup. Ct. 1945); Ex parte Anderson , 191 Or. 409, 229 P. 2 d 633, 639, 230 P. 2 d 770, 29 A.L.R. 2 d 1051 (Sup. Ct. 1951), and State v. Theisen , 167 Ohio St. 119, 146 N.E. 2 d 865 (Sup. Ct. 1957).
In Probation and Social Adjustment (1952) by Jay Rumney and Joseph P. Murphy, published by Rutgers University Press for the Essex County Probation Office, we find the following (at page 6):
"Probation is the status of a person convicted of a crime or adjudged guilty of delinquency during a period of suspension of sentence or corrective treatment in which he is given liberty conditional on his good behavior and in which the state through its agents by personal supervision attempts to assist him during good behavior."
In " Latter-Day Procedures in the Sentencing and Treatment of Offenders in the Federal Courts ," by Henry P. Chandler, Director, Administrative Office of the United States Courts -- 16 Federal Probation 3, 8 (March 1952), reprinted, with permission, from Virginia Law Review (October 1951), we note:
"THE NATURE AND ADVANTAGES OF PROBATION
Probation may be defined as the treatment of an offender by personal guidance and assistance without custody. The theory is that in the offender there is a core of sound impulse which by an understanding person can be brought out and made effective. Probation is really the application of wise and compassionate friendship. It is astonishing how much, with good judgment, faith, and perseverance, it can accomplish.
A probationer * * * exists in a normal social environment as a member of a family or community. By supervision he is assisted to make the necessary adjustment of his conduct in the situation under which he will continue to live. Supervision during probation, which may be close at the beginning, is gradually relaxed as the probationer demonstrates ability to control himself, and the removal of it at the end may be almost imperceptible. The probationer has learned under the conditions of life to go under his own control."
Chief Justice Hughes, in Burns v. United States , 287 U.S. 216, 220, 53 S. Ct. 154, 77 L. Ed. 266, 268 (1932), stated that a probation act
"* * * was designed to provide a period of grace in order to aid the rehabilitation of a penitent offender; to take advantage of an opportunity for reformation which actual service of the suspended sentence might make less probable."
Probation differs from imprisonment in that it "seeks to accomplish the rehabilitation of persons convicted of crime by returning them to society during a period of supervision rather than sending them into the unnatural and, all too often, socially unhealthful atmosphere of prisons and reformatories." United States Attorney General's Survey of Release Procedures, Vol. II, Probation (Washington Government Printing Office, 1939), p. 447.
"Probation is well recognized as an important device in our criminal jurisprudence. It is designed to aid both society and the offender by affording opportunity for correction and reform under suitable supervision. The main hope is that during the period of probation the violator will establish himself as a law-abiding and useful member of the public and thus avoid the need for actual confinement and its adverse consequences."
A comprehensive analysis of the history of probation, of the Probation Act (N.J.S. 2 A:168-1 et seq.), and of the New Jersey cases are set forth by Mr. Justice Jacobs at pages 563-566 of 13 N.J. See also Crime and Correction -- Selected Papers of Sheldon Glueck, chapter 9, " The Status of Probation ," reprinted from 15 Mental Hygiene 1-9 (1931) (Addison-Wesley Press, Inc., 1952), on the history of probation and its nature.
In State v. Haber , 132 N.J.L. 507, 511-512 (Sup. Ct. 1945), the court stated:
"In a 'summary hearing' on a penal ordinance or statute nothing will be presumed or intended in favor of the complaint or conviction.
Cf. State v. Rowe , 116 N.J.L. 48, 181 A. 706; affirmed 122 N.J.L. 466, 5 A. 2 d 697. So in a 'summary hearing,' as here, concerning as it did the liberty of defendant, nothing is presumed in favor of the manner in which defendant was deprived of that liberty.
Defendant, guilty or innocent, was entitled to due process of law -- to fair play, from the beginning, throughout and in the concluding steps of the case. Cf. Morgan v. United States , 304 U.S. 1, 58 S. Ct. 773, 999, 82 L. Ed. 1129, 1133; Redcay v. State Board of Education , 128 N.J.L. 281, 285, 25 A. 2 d 632. Justice required that defendant be given notice, opportunity to be heard and to defend himself in a timely and orderly proceeding adapted to the case."
The requirement of a notice is part of the "due process of law" read into the Probation Act by our decisions. See generally, " Right to notice and hearing before revocation of suspension of sentence, parole, conditional pardon, or probation ," 29 A.L.R. 2 d 1074, superseding 54 A.L.R. 1471 and 132 A.L.R. 1248. Although the state statute said nothing about notice and hearing, the Supreme Court of Washington held that a substantial right of the defendant was involved and that to enter a revocation order without giving defendant notice and an opportunity to be heard is to disregard a principle as old as the law itself, and that due process of law would require the giving of notice and an opportunity to be heard before a defendant could be committed under a suspended sentence. State v. O'Neal , 147 Wash. 169, 265 P. 175 (Sup. Ct. 1928). In 15 Am. Jur., Criminal Law , § 500, p. 151, we find:
"RIGHT TO NOTICE AND HEARING BEFORE REVOCATION OF SUSPENSION OR IMPOSITION OR EXECUTION OF SENTENCE
The record of the first hearing on September 25, 1957 indicates a violation of the requirement of "fair play." State v. Haber, supra (132 N.J.L. at page 512); State v. Pascal , 1 N.J. 261 (1949). We note that no such defect can be asserted pertaining to the second hearing held on December 13, 1957. That hearing was a de novo one and defendant received all constitutional safeguards. The issues of lack of proper notice and opportunity to be heard and to prepare to defend are therefore not now before us.
The broad issue is, did the trial court commit reversible error in the exercise of the judicial discretion admittedly conferred upon it by the Probation Act? State v. Pollastrelli , 29 N.J. Super. 327, 331 (App. Div. 1954).
Authorities in other jurisdictions state that: (a) the trial court's determination to revoke probation is entitled to "conclusive presumption," Varela v. Merrill , 51 Ariz. 64, 74 P. 2 d 569 (Sup. Ct. 1937); (b) the appellate court will not interfere with the trial court's order revoking probation "unless a manifest abuse of discretion on the part of the lower court appears. In such a case the judge is the trier of the facts and has a very wide discretion." Olsen v. State , 21 Ga. App. 795, 95 S.E. 269 (Ct. App. 1918); (c) a trial court's ruling that defendant has violated his conditions of probation is "a matter to be determined by the sound discretion of the court, and the exercise of that discretion, in the absence of gross abuse , cannot be reviewed here." State v. Everitt , 164 N.C. 399, 79 S.E. 274, 277, 47 L.R.A., N.S. , 848 (Sup. Ct. 1913); (d) that the action of the trial court in revoking probation will not be disturbed if there is some evidence "that could reasonably be taken as showing the probationer unworthy of the relief," People v. Fields , 131 Cal. App. 56, 20 P. 2 d 988 (Dist. Ct. App. 1933); and finally, (e) in Burns v. United States , 287 U.S. 216, 222-223, 53 S. Ct. 154, 156, 77 L. Ed. 266, 270
(1932), Chief Justice Hughes said in a case of a revocation of probation that:
"* * * The question is simply whether there has been an abuse of discretion and is to be determined in accordance with familiar principles governing the exercise of judicial discretion. That exercise implies conscientious judgment, not arbitrary action. The Styria v. Morgan , 186 U.S. 1, 9, 22 S. Ct. 731, 46 L. Ed. 1027 . It takes account of the law and the particular circumstances of the case and is 'directed by the reason and conscience of the judge to a just result.' Langnes v. Green , 282 U.S. 531, 541, 51 S. Ct. 243, 247, 75 L. Ed. 520, 526. While probation is a matter of grace, the probationer is entitled to fair treatment, and is not to be made the victim of whim or caprice."
The New Jersey view is in line with Chief Justice Hughes' opinion.
This court has defined "judicial discretion" in Smith v. Smith , 17 N.J. Super. 128, 132 (App. Div. 1951):
"[As] the option which a judge may exercise between the doing and the not doing of a thing which cannot be demanded as an absolute legal right, guided by the spirit, principles and analogies of the law, and founded upon the reason and conscience of the judge, to a just result in the light of the particular circumstances of the case. 23 Words & Phrases, p. 278; Brandon v. Board of Commissioners of Town of Montclair , 124 N.J.L. 135 (Sup. Ct. 1940); affirmed 125 N.J.L. 367 (E. & A. 1940); Beronio v. Pension Commission of City of Hoboken , 130 N.J.L. 620 (E. & A. 1943); Hoffman v. Maloratsky , 112 N.J. Eq. 333 (E. & A. 1933)."
We there emphasized the two restrictions imposed upon us as an appellate court to warrant us in nullifying a ruling of a trial court made in the exercise of its conceded ...