#### STATE v. ROBERT LEE HADDOCK.

(Filed 24 November, 1954.)

Criminal Law § 63f—

Where it appears that the court revoked probation under a suspended sentence in a particular ease without a hearing with respect to any violation by defendant of the terms and conditions of that judgment, the cause must be remanded.

*183CeRtioeaei to review tbe order of *Parker, J.,*in *habeas corpus*upon petition of Eobert Lee Haddock, from Pitt.

This cause is bere upon a *writ of certiorari*issued by tbis Court under Eule 34 at tbe instance of Eobert Lee Haddock, to review tbe judgment below dismissing tbe Avrit of *habeas corpus*and remanding petitioner to custody under a former judgment of tbe Superior Court.

Tbe petitioner was tried at tbe August Term 1952 of Pitt Superior Court upon a warrant charging bim with assault upon bis wife, and was sentenced by tbe court, Honorable W. C. Harris, Judge Presiding, to eighteen months in jail. Tbe judgment was suspended and be was placed on probation for a term of three years upon tbe usual conditions applicable to such eases.

At tbe September Term 1953 of tbe Superior Court of Pitt County, tbe petitioner entered a plea of guilty upon a warrant charging bim with nonsupport, before bis Honor J. Paul Frizzelle, Judge Presiding. He was sentenced by Judge Frizzelle to twelve months in jail. Tbe sentence was suspended upon condition that tbe defendant pay into tbe office of tbe Clerk of tbe Superior Court tbe sum of $20.00 per week for tbe support of bis wife and children.

Tbe petitioner alleges in bis petition for *writ of certiorari*that be complied with tbe judgment of Judge Frizzelle until such time as be returned to bis borne and resumed marital relations with bis wife.

He further alleges that at tbe January Term 1954 of tbe Superior Court of Pitt County, be was brought into court by tbe probation officer to show cause why the order of probation entered at tbe August Term 1952, should not be revoked; that tbe Presiding Judge inquired of tbe defendant if be bad any money, and, upon a negative response, tbe court told tbe defendant to go out and get $100.00 and have it in court by Wednesday of that term; thereupon, tbe defendant left tbe court to procure tbe said amount, and being unable to do so did not return before tbe adjournment of tbe court for that term, but did secure and give $25.00 to bis wife, being all the money he could get.

Upon tbe failure of tbe petitioner to return to tbe court on Wednesday of said term, tbe court on Thursday, 21 January, 1954, without further bearing, entered an order to tbe effect that tbe defendant bad violated tbe conditions of tbe probation judgment in that be bad willfully failed to comply with tbe judgment imposed by Judge Frizzelle and revoked tbe order of probation contained in tbe judgment entered by Judge Harris at tbe August Term 1952, and directed that tbe eighteen months’ sentence imposed in said judgment be put into effect.

*Attorney-General McMullan and Assistant Attorney-General Love for the State.'*

*Albion Dunn for petitioner.*

*184Per Curiam.

Tbe record before us seems to justify tbe conclusion that no bearing was beld in tbe court below with respect to any violation of tbe terms and conditions of tbe judgment entered at tbe August Term 1952 of tbe Superior Court of Pitt County, but that tbe inquiry was addressed to tbe petitioner’s noncompliance witb tbe judgment entered by Judge Erizzelle at tbe September Term 1953.

"We bave concluded that in view of tbe state of tbe record before us, tbe ends of justice require tbe setting aside of tbe order entered at tbe January Term 1954 of tbe Superior Court of Pitt County, and tbat tbis cause be remanded to tbe Superior Court of said county for sucb further orders as tbe facts may warrant, upon another bearing, and it is so ordered.

Remanded.