In Re Bine

SHENK J.

This is a proceeding in habeas corpus to determine whether the court exceeded its jurisdiction in modifying the terms of petitioner’s probation.

Petitioner and four codefendants, Jarosh, Chapman, Sergent and Thrift, were charged with conspiracy to defraud certain insurance companies. Each pleaded guilty and requested probation. Probation reports were prepared in the probation department from information obtained from the defendants and from the investigation department of the district attorney’s office. At the probation hearing on June

[816]

18, 1956, the court stated that it had read the probation report for this petitioner and granted him probation. The following minute order was thereupon entered: “Proceedings suspended, 5 years probation, fined $1,000.00, payable as directed by probation department, to obey all laws.” On July 1, 1956, the probation department accepted as satisfactory an initial payment of $25 from petitioner. On July 17th the court, on its own motion, set July 31st for hearing for modification of the terms of probation. Its action was precipitated by reason of an affidavit made by codefendant Chapman dated June 19, 1956, which stated that the affiant wanted “to correct an error of information available to the Court at the time of the sentencing of Howard Jarosh.” In ordering a hearing the court stated that it had had a further investigation made and had found “that there was outright deceit practiced upon the Probation Department and the court granting the original probation. ’ ’ Supplemental probation reports were furnished as to each defendant, including petitioner. The affidavit of Chapman contains no reference, direct or indirect, to petitioner. The supplementary probation report states that “Subsequent investigation and questioning of [petitioner] does not materially modify or bring to light any information not included in the original report submitted to the court.” No evidence was presented at the hearing as to petitioner which was not before the court on June 18th. After the hearing a minute order was entered which provided, as to petitioner: “Probation modified, requirement of fine is vacated and set aside, defendant required to serve next 6 months in county jail, good time is recommended, honor farm or road camp recommended. Defendant remanded.”

The question before us is whether the court exceeded its jurisdiction in modifying the probation of petitioner and whether the remedy of habeas corpus is available to him. It should be observed that no problem is here presented as to improper conduct by petitioner or violation of the terms of his original probation.