Heretofore in the case of McCoy v. Harris, 108 Utah 407,160 P.2d 721, I have expressed my doubts as to whether the case of State v. Zolintakis, 70 Utah 296, 259 P. 1044, 54 A.L.R. 1463, was correctly decided. It is quite probable that when the legislature gave a district judge discretion to suspend sentence after conviction, it had enough faith in his ability and judgment to give him absolute discretion to determine when the probation should be revoked. The Zolintakis case seems to have treated a man convicted of crime whose liberty is circumscribed and conditioned while on probation as entitled to the same procedural due process in the determination of whether he has violated the condions of his probation as he would be entitled to when on trial for the commission of a crime. I thought the philosophy back of the case of McCoy v. Harris was otherwise. In probation as in parol the defendant is convicted and has only conditional liberty. When a law intended to benefit a convicted defendant is so construed as to require formal pleadings, right of counsel, formal hearing with all the judicial trimmings and right of appeal just to insure against the possible rare case of arbitrary action by a judge, it goes a long way to discourage a judge from granting probation and defeats the salutary purposes of the act. A judge may feel in a doubtful case that if he tries probation, the convicted defendant will be put in such strategic position as to virtually defeat needed revocation. I have expressed my willingness to go along with the Zolintakis case if it is construed only as rquiring that before probation is revoked *Page 11 the probationer be given a hearing on the question of whether he has violated the conditions of his probation. I do not think he need be notified in writing as to the facts relied upon for revocation, nor that he is entitled to counsel, nor that the hearing be formal. A hearing implies a right to present relevant evidence. I think the right to examine and cross-examine witnesses is largely in such type of case in the discretion of the judge who granted probation. The intent of the law was to give the judge a supervisory jurisdiction over the probation and if we are to adhere to the holding that the defendant is entitled to a hearing, we should hold that it is in the nature of an inquiry, the nature and extent of which is largely in the discretion of the judge. The judge could call in the probationer, question him on matters which were brought to the judge's notice by others. Whether the probationer should be confronted by those witnesses is within the choice of the judge. The inquiry need not extend beyond an informal hearing and certainly need not be expanded into a formal trial. It is not to be presumed that the judge will be arbitrary. It is to be presumed that he will act on a reasonable factual basis. The judge had absolute discretion to grant or refuse probation. If we hold that he has a limited discretion in revoking, I think we are going beyond what the statute intended but certainly with a right of appeal, the rights of the probationer which we have judicially given him are sufficiently protected without holding that he is entitled to all of the formality and procedure which due process may require in the case of a man charged but not convicted of a crime. It seems to me the appeal should be limited to determine only whether the trial judge was arbitrary in revoking the suspension. And if he accorded a hearing on reasonable notice and reasonable opportunity to the defendant to present his side of the story, the judge could not be said to have been arbitrary at least in regard to procedure.
The opinion of the Chief Justice seems to me even to add to the requirements laid down in the Zolintakis case. It is unnecessary in this case to catalogue the essentials of due *Page 12 process. In this case the defendant himself admitted to the judge and admitted before us on the hearing on the writ of habeas corpus, that he had admitted to the judge that he had broken the conditions of his parole. There was, therefore, no issue or question necessitating a hearing. That is all there is to this case.
Perhaps I should add that it would be more accurate to say that "Due process of law may involve a jurisdictional question * * *" rather than that it "may be a jurisdictional question." Failure to obtain jurisdiction may be because the requirements of due process have not been complied with but once having jurisdiction there may be failure to grant due process which failure does not unhorse the court of jurisdiction nor involve a jurisdictional question. But if due process has not been followed in the attempt to gain jurisdiction, jurisdiction may never have been obtained. The limited questions considered in habeas corpus proceedings in respect to prisoners were fully discussed by this court in the case of Thompson v. Harris, 106 Utah 32,144 P.2d 761, on petition for rehearing 107 Utah 99, 152 P.2d 91.
However, I heartily concur in the result reached in the opinion. *Page 13