Defendant Charles G. Marks, Jr., of Waukegan, Illinois, who was a student at Michigan State College at East Lansing, injured 2 pedestrians on February 12, 1949. Pie was charged with the felonious operation of an automobile, contrary to the provisions of PA 1931, No 214 (CL 1948, § 752.191 et seq. [Stat Ann § 28.661 et seq.~[). An order of nolle prosequi was entered on the second count of the information, in which he was charged with having left the scene of the accident without rendering assistance to the injured parties or giving his name and address, et cetera.
On arraignment defendant stood mute and a plea of not guilty was entered for him. The calendar entries show a jury trial resulting in a verdict of guilty. On May 4, 1949, defendant was placed on probation for a period of 3 years under the usual conditions, and, in addition thereto, costs of $200 were taxed. Under the order the defendant was permitted to return to his home at Waukegan, Illinois, and report once a month, by mail, to the acting chief probation officer in Lansing. During the period of probation defendant was not permitted to drive or operate any motor vehicle.
There is nothing in the record to indicate that Marks failed at any time during the 3-year period of probation to comply with all the terms of the court’s order.
On January 9, 1950, one of the injured parties, Norma Jean Towar, in a trial without a jury, obtained a judgment against Marks in the sum of $10,000, and on May 4,1950, the other injured party, Berten L. Davey, in the same manner obtained a judgment of $11,000. Neither judgment has been satisfied either in whole or in part.
The probation officer of the Ingham county circuit court, on September 18, 1952, which was 4 months and 14 days after the expiration of the 3-year period of probation, filed a petition for extension of probation for a term of 2 years and asked that Marks be ordered to make restitution to each of the injured parties in the sum of $2,500, payable in instalments not later than February 4, 1953. On this same date the circuit judge entered an order extending the period of probation for a period of 2 years, but without any reference therein to the matter of restitution.
A second petition was filed by the probation officer on December 12, 1952, in which the court was asked to vacate and set aside the order entered on September 18th and that an order be entered extending the period of probation for 2 years to end on May 4,1954, and that defendant be required to make reasonable restitution.
Defendant, by counsel, on January 27,1953, sought dismissal of the petition for extension and the vacation of the September order on various grounds, among which were that the court was without jurisdiction and authority to amend the original order, because it contained no provisions for restitution,'
At a hearing on the issue thus framed, defendant’s motion to dismiss was denied, the order of September 18th was vacated, and another order was entered extending the period of probation for 2 years, with the requirement that $200 be paid each of the injured parties each month until the sum of $2,400 had been paid, and, in addition, a final payment of $100 to each of the parties should be made within 30 days thereafter.
Motions for rehearing were denied and a stay was granted in order that an appeal might be taken to this Court. Leave to appeal followed.
Among the various questions raised, the decisive one may be expressed as follows:
Did the trial court have jurisdiction and authority to extend the probation period for an additional 2 years and alter the original terms of probation to include restitution after the original period of probation had expired?
The authority of the court must be found in the statute. It is unnecessary to quote at length the probation provisions of the code of criminal procedure.
Section 2 of chapter 11 of PA 1927, No 175, as amended (CL 1948, §771.2 [Stat Ann § 28.1132]), reads:
“If respondent is convicted of an offense not a felony the period of probation shall not exceed 2
Section 3 of chapter 11 (CL 1948, § 771.3 [Stat Ann § 28.1133]) provides that, among the conditions of probation, the court may include “restitution in whole or in part to the person or persons injured * * * as the circumstances of the case may require or warrant, or as in its judgment may be meet and proper.”
In
People
v.
Good,
“It was not a deprivation of due process of law to deny defendant a hearing on the question of the amount of ‘damages’ to be imposed as a condition of probation and the statute * * * is ample notice of the possibility that such a condition might be imposed.”
In the
Good Case
we cited
People
v.
Dudley,
The view of Mr. Justice Wiest in his concurring opinion in the Good Case, which seems to be shared by the defendant in the instant case, did not meet with the approval of the Court.
Because of the importance of the question raised in the instant case, we quote somewhat at length from the view of the supreme court of the United States as expressed by Chief Justice Hughes in
Burns
v.
United
States,
“was designed to provide a period of grace in order to aid the rehabilitation of a penitent offender; to take advantage of an opportunity for reformation which actual service of the suspended sentence might make less probable. # * * Probation is thus conferred as a privilege and cannot be demanded as a right. It is a matter of favor, not of contract. There is no requirement that it must be granted on a specified showing. The defendant stands convicted; he faces punishment and cannot insist on terms or strike a bargain. To accomplish the purpose of the statute, an exceptional degree of flexibility in administration is essential. It is necessary to individualize each case, to give that careful, humane and comprehensive consideration to the particular situation of each offender which would be possible only in the exercise of a broad discretion. The provisions of the act are adapted to this end. It authorizes courts of original jurisdiction, when satisfied ‘that the ends of justice and the best interests of the public, as well as the defendant, will be subserved,’ to suspend the imposition or execution of sentence and ‘to place the defendant upon probation for such period and upon such terms and conditions as they may deem best.’
“There is no suggestion in the statute that the scope of the discretion conferred for the purpose of making the grant is narrowed in providing for its modification or revocation. The authority for the latter purpose immediately follows that given for the former, and is in terms equally broad. ‘The
• “The question, then, in the case of the 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. That exercise implies conscientious judgment, not arbitrary action. * * * It takes account of the law and the particular circumstances of the case and ‘is directed by the reason and conscience of the judge to a just result.’ * * * While probation is a matter of grace, the probationer is entitled to fair treatment, and is not to be made the victim of whim or caprice.”
In the light of the view expressed in the Good and Burns Cases, we, therefore, hold that defendant’s rights were not impinged by the alteration in the probation order made within the statutory 5-year period, even though the conditions of the original order had not been violated and its term had expired.
The trial judge, under the statute hereinbefore cited, was at liberty “at all times” within the 5-year period to alter and amend the order “both in form
Tbe order is affirmed.