295 U.S. 490 (1935), 773, Escoe v. Zerbst

Docket NºNo. 773
Citation295 U.S. 490, 55 S.Ct. 818, 79 L.Ed. 1566
Party NameEscoe v. Zerbst
Case DateMay 20, 1935
CourtUnited States Supreme Court

Page 490

295 U.S. 490 (1935)

55 S.Ct. 818, 79 L.Ed. 1566

Escoe

v.

Zerbst

No. 773

United States Supreme Court

May 20, 1935

Argued May 6, 1935

CERTIORARI TO THE CIRCUIT COURT OF APPEALS

FOR THE TENTH CIRCUIT

Syllabus

1. The federal District Court, acting on the request of a probation officer based on information received by him concerning a probationer's delinquency, is without power to revoke a suspension of sentence and commit the probationer to prison to serve the sentence where the probationer was not "taken before the court" and afforded an opportunity to be heard in answer to the charges. Act of March 4, 1925, c. 521, § 2, as amended. P. 492.

2. This privilege of the probationer is not a right guaranteed by the Constitution, but is based upon the Act of Congress governing the procedure in such cases. P. 492.

3. The requirement of the Act of March 4, 1925, c. 521, § 2, that, upon the arrest of a probationer, he " shall forthwith be taken before the court" is mandatory in meaning as well as in form. P. 494.

4. Habeas corp is a proper remedy to obtain the release of a probationer who has been committed without an opportunity to be heard. His discharge will be without prejudice to his arrest and commitment as a result of subsequent proceedings conforming to the statute. P. 494.

5. The contention that the district judge, in revoking probation on an ex parte showing in this case, has plainly indicated how his discretion will be exercised if a hearing is granted is a non sequitur, and affords no basis for denial of a hearing. P. 494.

74 F.2d 924 reversed.

Certiorari, 294 U.S. 704, to review a judgment affirming an order of the District Court dismissing an application for a writ of habeas corpus.

Page 491

CARDOZO, J., lead opinion

MR. JUSTICE CARDOZO delivered the opinion of the Court.

Petitioner was convicted of a crime in the United States District Court for the Eastern District of Texas after indictment and a plea of guilty. He was sentenced, October 10, 1932, to imprisonment for four and a half years in the Penitentiary at Leavenworth, Kansas. On the same day, the sentence was suspended for five years upon conditions of probation, and the defendant (the petitioner in this Court) was placed in charge of the District Probation Officer for that length of time. One of the conditions was that the probationer would refrain from the violation of any state or federal penal laws. Another was that he would live "a clean, honest, and temperate life."

In July, 1933, information was conveyed to the District Probation Officer that petitioner had broken these conditions. In a letter written by his father, he was charged with drunkenness and the forgery of two checks. The officer made report of this information to the District Judge and requested a revocation of the order for suspension of sentence. On July 29, 1933, the District Judge issued a mandate for a warrant of arrest. On August 5, he signed an order that the suspension be revoked and that the defendant be committed to prison to serve the stated term. Upon arrest under the warrant, the defendant was not brought by his custodian before any court or judge. He was transported at once to the penitentiary at Leavenworth, Kansas, and there imprisoned. Later, in December, 1933, he filed a petition for a writ of habeas corpus in the United States District Court for the District of Kansas, contending that his imprisonment was unlawful for the reason that probation had been ended without the opportunity for a hearing made necessary by statute. The District Judge dismissed the application for the writ, and the Circuit Court of Appeals for the Tenth Circuit

Page 492

affirmed his order. 74 F.2d 924. A writ of certiorari issued from this Court..

Upon the suspension of sentence in October, 1932, the applicable statute made provision as follows:

At any time within the probation period, the probation officer may arrest the probationer without a warrant, or the court may issue a warrant for his arrest. Thereupon, such probationer shall forthwith be...

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417 practice notes
  • 175 B.R. 355 (Bkrtcy.E.D.Cal. 1994), 989-02119-12, In re Davenport
    • United States
    • Federal Cases United States Bankruptcy Courts Ninth Circuit
    • August 8, 1994
    ...There is perhaps no less ambiguous word used in statutes than "shall." "Shall" implies a command. See Escoe v. Zerbst, 295 U.S. 490, 493, 55 S.Ct. 818, 819-20, 79 L.Ed. 1566 (1935); see also United States v. Rodgers, 461 U.S. 677, 706-09, 103 S.Ct. 2132, 2149-51, 76 L.Ed......
  • 90 B.R. 344 (Bkrtcy.N.D.Ill. 1988), 88 B 5141, In re Chicago, Missouri and Western Ry. Co.
    • United States
    • Federal Cases United States Bankruptcy Courts Seventh Circuit
    • August 24, 1988
    ...consider the public interest" (emphasis added). The word "shall" ordinarily connotes a command. Escoe v. Zerbst, 295 U.S. 490, 493, 55 S.Ct. 818, 820, 79 L.Ed. 1566 (1935). Because of this mandatory language, the court may not forego consideration of the public interest in ma......
  • Crawfish Processors Alliance v. United States, 050604 uscit, 02-00376
    • United States
    • May 6, 2004
    ...and not mandatory. While the statute uses the word "shall," which generally suggests mandatory action, see Escoe v. Zerbst, 295 U.S. 490, 493 (1935), a time period provided for in a statute "is not mandatory unless it both expressly requires an agency or public official to ac......
  • In re Energy Future Holdings, Corp., 010715 DEBC, 14-10979 (CSS)
    • United States
    • Federal Cases United States Bankruptcy Courts Third Circuit
    • January 7, 2015
    ...511 U.S. 531, 537, 114 S.Ct. 1757, 1761, 128 L.Ed.2d 556 (1994) (citations and internal quotations omitted). See also Escoe v. Zerbst, 295 U.S. 490, 493 (1935) (The word "shall" is generally construed to be mandatory in its meaning.) But see Bob Jones Univ. v. United States, 461 U......
  • Request a trial to view additional results
412 cases
  • 175 B.R. 355 (Bkrtcy.E.D.Cal. 1994), 989-02119-12, In re Davenport
    • United States
    • Federal Cases United States Bankruptcy Courts Ninth Circuit
    • August 8, 1994
    ...There is perhaps no less ambiguous word used in statutes than "shall." "Shall" implies a command. See Escoe v. Zerbst, 295 U.S. 490, 493, 55 S.Ct. 818, 819-20, 79 L.Ed. 1566 (1935); see also United States v. Rodgers, 461 U.S. 677, 706-09, 103 S.Ct. 2132, 2149-51, 76 L.Ed......
  • 429 F.2d 1359 (10th Cir. 1970), 6-70, Murray v. Page
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Tenth Circuit
    • August 11, 1970
    ...cannot so do, does the administration of justice require a retroactive application of such rule. Relying principally upon Escoe v. Zerbst, 295 U.S. 490, 55 S.Ct. 818, 79 L.Ed. 1566, and its progeny, the appellee has argued that since parole is a privilege or grace given to a prisoner, its r......
  • 522 B.R. 520 (Bkrtcy.D.Del. 2015), 14-10979 (CSS), In re Energy Future Holdings Corp.
    • United States
    • Federal Cases United States Bankruptcy Courts Third Circuit
    • January 7, 2015
    ...511 U.S. 531, 537, 114 S.Ct. 1757, 1761, 128 L.Ed.2d 556 (1994) (citations and internal quotations omitted). See also Escoe v. Zerbst, 295 U.S. 490, 493, 55 S.Ct. 818, 79 L.Ed. 1566 (1935) (The word " shall" is generally construed to be mandatory in its meaning.) But see Bob Jones......
  • 90 B.R. 344 (Bkrtcy.N.D.Ill. 1988), 88 B 5141, In re Chicago, Missouri and Western Ry. Co.
    • United States
    • Federal Cases United States Bankruptcy Courts Seventh Circuit
    • August 24, 1988
    ...consider the public interest" (emphasis added). The word "shall" ordinarily connotes a command. Escoe v. Zerbst, 295 U.S. 490, 493, 55 S.Ct. 818, 820, 79 L.Ed. 1566 (1935). Because of this mandatory language, the court may not forego consideration of the public interest in ma......
  • Request a trial to view additional results
1 firm's commentaries
  • The Tyranny of the Judiciary
    • United States
    • JD Supra United States
    • March 24, 2015
    ...here it is evident that the word 'may' is used in special contradistinction to the word 'shall'"). 42See, e.g., Escoe v. Zerbst, 295 U.S. 490, 493 (1935) ("doubt . . . is dispelled when we pass from the words alone to a view of [the statute's] ends and 43See, e.g., Moore v. Illino......
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