On Petition for Rehearing. Before SIBLEY, McCORD, and LEE, Circuit Judges.
McCORD, Circuit Judge.
On October 18, 1945, on plea of guilty, Donald R. Manning was convicted on eight counts of an information charging him with unlawfully introducing in interstate commerce a number of packages containing drugs which had been misbranded, all in violation of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C.A. § 352(a). Manning was sentenced to thirty days imprisonment under count one, and on the other counts was placed on probation for a period of three years.
On November 13, 1946, the probation officer filed a complaint charging that Manning had violated the conditions of his probation. The matter came up for hearing on November 15, 1946, and Manning moved for a more definite and formal complaint setting out the charges against him. The motion was denied, but there was filed a statement which recited: "Violations of Conditions of Probation: 1. Practicing medicine without a license during period from May 1, 1946, to August 31, 1946. 2. On or about May 9, 1946, used the mails to defraud Charles Ebel of Box 117, Cherokee, Ala. 3. On or about August 26, 1946, used the mails to defraud M. T. Hanson, Repton, Ala. 4. On or about August 26, 1946, used the mails to defraud Olive Harold of Box 369, Bay Minette, Ala." The hearing was continued until November 22, 1946, and was then conducted before the district judge that had originally placed Manning on probation. Testimony for and against Manning was received, and at the conclusion of the hearing the district judge revoked Manning's probation,
Appellant contends that he was entitled to have in advance a list of adverse witnesses and a more particular specification of the charges against him than was furnished; that there were no conditions of probation pronounced at the time he was placed on probation; and that the evidence at the hearing was not sufficient to justify revocation of probation on either of the
As to appellant's allegations that the complaint against him was not specific enough, it is sufficient to say that a proceeding for revocation of probation is not one of formal procedure "either with respect to notice or specification of charges or a trial upon charges. 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." Burns v. United States, 287 U.S. 216, 53 S.Ct. 154, 156, 77 L.Ed. 266; Escoe v. Zerbst, 295 U.S. 490, 55 S.Ct. 818, 79 L.Ed. 1566; Dillingham v. United States, 5 Cir., 76 F.2d 35.
A probationer may not have his probation revoked unless it is made to appear that he has failed to comply with the terms and conditions of his probation. Mankowski v. United States, 5 Cir., 148 F.2d 143, 144. Appellant accordingly asserts that no terms or conditions of probation were included in the judgment placing him on probation. This contention is without basis or merit. Since September 21, 1939, there has been in the District Court of the Northern District of Alabama a standing order imposing general conditions of probation.
There is no merit in appellant's contention that the evidence was not sufficient to justify revocation of his probation. Action of a trial judge in revoking probation is an exercise of broad discretionary power, and on appeal the question is simply whether there has been an abuse of discretion. Burns v. United States, 287 U.S. 216, 53 S.Ct. 154, 77 L.Ed. 266; Pritchett v. United States, 4 Cir., 67 F.2d 244. There is abundant evidence in this record from which the trial judge could, and did, conclude that Manning, in the conduct of his herb business, was holding himself out to ignorant people as a doctor; that he was purporting to diagnose ailments and was prescribing medicines for their cure; that the medicines which he prescribed and sold by mail were not beneficial, but were, in many instances, absolutely worthless and harmful to the patient; and that Manning was not leading an honest life, but was perpetrating a fraud on the public.
It may be, as appellant contends that the evidence on the probation revocation hearing would not be sufficient to support a conviction under federal laws for using the mails to defraud or under Alabama law for practicing medicine without a license. But proof sufficient to support a criminal conviction is not required to support a judge's discretionary order revoking probation. A judge in such proceeding need not have evidence that would establish beyond a reasonable doubt guilt of criminal offenses. All that is required is that the evidence and facts be such as to reasonably satisfy the judge that the conduct of the probationer has not been as good as required by the conditions of probation. Campbell v. Aderhold, D.C., 36 F.2d 366; United States v. Hanson, D.C., 49 F.Supp. 355.
Manning was given a full, fair, and comprehensive hearing before the trial judge. The record, instead of showing abuse of discretion on the part of the trial
The judgment is affirmed.