dissenting:
Respectfully, I dissent from the decision of the majority in this case. I do not quarrel with the law as stated in the syllabus and in the body of the opinion but I do disagree with the manner in which it is applied. The entire basis of my dissent is that the court abused its discretion in revoking probation and sending the probationer to the penitentiary in the peculiar circumstances of this case.
Although, as stated in the majority opinion, probation is a matter of grace and not a matter of right, I believe that revocation of probation presents a different consideration of the probationer’s rights. Under the provisions of Code, 1931, 62-12-10, as amended, relating to violation of probation, the court shall afford the probationer a prompt and summary hearing before probation can be revoked. It occurs to me that the legislature intended that such hearing be meaningful and serve a useful purpose. That body in its wisdom has said in effect that before a judge may revoke probation he must hold a hearing to consider and evaluate the grounds for revocation. It is implicit in that statute that if such grounds do not exist, or if extenuating circumstances appear to obviate the reasons for revocation, the judge in the proper exercise of his discretion may continue probation. Also, the statute has said in effect that a judge cannot summarily revoke probation without any cause or reason.
That the legislature relies on the discretion of the court as to whether probation may continue, even in the face of a violation thereof as the circumstances may *350warrant, is demonstrated by the following language of the above cited statute: “If, despite a violation of the conditions of probation, the court or judge shall be of the opinion that the interests of justice do not require that the probationer serve his sentence, the court or judge may, except when the violation was the commission of a felony, again release him on probation.”
In the instant case there definitely was a violation of the terms of probation but the circumstances thereof, in my opinion, as reflected by the evidence at the probation hearing, reveals that.such violation was technical. This petitioner was not charged with any crime nor was he charged with the use of drugs, alcoholic beverage or anything of that nature. It is unquestioned that the charge against him in Maryland was immediately dismissed for the lack of evidence and certainly should not be used as a ground for revocation.
Reduced to basics, this young man’s probation has been revoked because he travelled seven or eight miles outside the state at which time he was under the belief that he had blanket permission from his probation officer to go into Preston County. That he took a circuitous route outside the state because of weather conditions should be of little concern. Nothing adduced at the hearing reflected anything but a good reputation as a student and as a citizen. Nothing in that hearing, other than a pure technical violation of probation, warranted the imposition of a penitentiary sentence on this young man. Considering the admitted facts of this case, that Samuel Blaine Rose at the age of eighteen, while a freshman at the university, had in his possession a marijuana cigarette the size of two filters on an ordinary filter cigarette and considering further the favorable image portrayed at the hearing, which went uncontradicted, it is unconscionable, in my opinion, to subject this young college student to the obvious consequences of an extended term at the state penitentiary.
While, as herein noted, both the granting and revoking of probation are within the discretion of the proper court, *351such discretion must be exercised with regard to the information before the court and must not be exercised in an arbitrary or capricious manner. Reflecting this proposition, the court in People v. Wade, 53 C. 2d 322, 1 Cal. Rptr. 683, 348 P.2d 116, said: “Probation is, therefore, a power that may be exercised in the discretion of the court. * * * But that discretion may not be exercised in an arbitrary or capricious manner. It must be impartial, guided by ‘fixed legal principles, to be exercised in conformity with the spirit of the law.’ * * * It has, therefore, been held error to deny probation without determining whether the statutory requirements for probation were present.” That case further held that a court must not decide matters relating to probation until it is in possession of all of the relevant facts. See People v. Burdick, 117 Ill. App. 2d 314, 254 N.E.2d 148 and State v. Douglas, 87 Ariz. 182, 349 P.2d 622. See also Mempa v. Rhay, 389 U.S. 128, 88 S. Ct. 254, 19 L. Ed. 2d 336, wherein the court readily acknowledged that one’s substantial rights are affected in a revocation of probation hearing.
Inasmuch as it is my opinion that the court abused its discretion in revoking probation in the circumstances of this case, I would reverse the action of the court.
I am authorized to say that Judge Haden concurs in the views expressed in this dissenting opinion.