JOHNSON, District Judge.
On the 18th day of December, 1933, Jack Escoe, appellant, filed in the court below his petition praying that a writ of habeas corpus issue directing the appellee, Zerbst, warden of the United States penitentiary at Leavenworth, at a time to be stated, to have the petitioner before the court, and on hearing had to discharge him from said penitentiary. On the 26th day of January, 1934, the trial court made the following order:
"Now on this 26th day of January, A. D. 1934, at Topeka, Kansas, came regularly on for hearing the motion of the respondent to dismiss the petition for writ of habeas corpus filed herein. The petitioner appeared by Floyd Strong, his attorney, and the respondent appeared by L. E. Wyman, Assistant United States Attorney, the court upon being duly advised in the premises finds and orders that said motion to dismiss should be and the same is hereby overruled to which finding and order the respondent excepts and his exceptions are hereby allowed.
"Upon application of the respondent, it is thereupon directed that the respondent file a response to the petition herein forthwith and that the petitioner if he so desires file his reply to said response.
"Thereupon the petitioner introduced his evidence including the exhibits attached to his petition and rested, the respondent thereafter introduced his evidence including the exhibits attached to the response and rested.
"The court after argument of counsel and after consideration of all of the pleadings filed herein and being duly advised in the premises, finds that said writ for habeas corpus should be and the same is hereby denied, to which finding and order the petitioner excepts and his exceptions are hereby allowed."
This order recites that evidence was introduced by the parties respectively. No bill of exceptions is found in the record preserving the same. We are limited, as apparently the trial court limited itself, to a consideration of the pleadings, including the exhibits attached.
The applicable statute is that part of the second paragraph of Act March 4, 1925, § 2, section 725, title 18 USCA, as amended on June 16, 1933, which reads: "At any time within the probation period the probation officer may arrest the probationer wherever found, without a warrant, or the court which has granted the probation may issue a warrant for his arrest, which warrant may be executed by either the probation officer or the United States marshal of either the district in which the probationer was put upon probation or of any district in which the probationer shall be found and, if the probationer shall be so arrested in a district other than that in which he has been put upon probation, any of said officers may return probationer to the district out of which such warrant shall have been issued. Thereupon such probationer shall forthwith be taken before the court. * * * Thereupon the court may revoke the probation or the suspension of sentence, and may impose any sentence which might originally have been imposed."
The allegations of the petition material to the present inquiry are:
"That on October 5, 1932, he appeared before the United States District Court, Eastern Division, of the District of Texas, at Tyler, Texas, to answer an indictment alleged a violation of the National Motor Vehicle Theft Act. A certified copy of said indictment is hereto attached.
"That he entered a plea of guilty to said indictment, and was sentenced by said court, and said sentence be and the same is hereby suspended for a period of five (5) years on conditions of probation and the defendant be placed in charge of the district probation officer for that length of time. A certified copy of the judgment and sentence is hereto attached.
"While he was at liberty under the suspended sentence, he was arrested at Marshall, Texas, on an order of the United States District Court for the Eastern District of Texas, Tyler Division, * * * that instead of being taken before said court at Tyler, Texas, and given a hearing as provided by law and the Constitution of the United States, he was on August 11, 1933, brought directly from Paris, Texas, by a deputy United States marshal * * * and surrendered to the warden of the United States penitentiary at Leavenworth, Kansas, where he has at all times since been imprisoned.
"That by reason of the fact that he was brought directly to the United States penitentiary at Leavenworth, Kansas, without such hearing before the court that sentenced him, he is unlawfully imprisoned and restrained of his liberty."
The copy of the judgment and sentence attached to the petition recites that:
"On the 10th day of October, A. D. 1932, the defendant again appearing and being asked by the court if he had anything to say why the judgment and sentence of the court should not be pronounced upon him, in accordance with his confessed plea of guilty, entered in this cause on the 5th day of October, A. D. 1932, and no good cause being shown why the judgment and sentence should not be pronounced herein;
"It is, therefore, considered by the court and so ordered, adjudged and decreed that the defendant is guilty of violation of the National Motor Vehicle Theft Act, to-wit: of unlawfully, knowingly, fraudulently and feloniously transporting in interstate commerce from New Orleans, in the State of Louisiana, to Marshall, in the State of Texas, a certain motor vehicle, a Chevrolet roadster, knowing same to have been stolen property as charged in the indictment herein, and his punishment is fixed and assessed as follows:
"That the defendant be imprisoned in the United States penitentiary at Leavenworth, Kansas, for a period of four (4) years and six (6) months.
"It appearing to the satisfaction of the court that the ends of justice and the best interest of the public, as well as that of the defendant will be subserved by the suspension of the execution of the sentence pronounced herein;
"It is therefore considered by the court, and so ordered, that said sentence be and the same is hereby suspended for a period of five (5) years on conditions of probation and the defendant be placed in charge of the district probation officer for that length of time."
Following this is an order of that court as follows: "That the suspended sentence heretofore granted the defendant be, and the same is hereby in all things revoked, and the clerk will issue a commitment and deliver the same to the United States marshal for execution. This August 5, 1933."
In his answer the warden substantially admits the allegations of the petition that the order of August 5, 1933, revoking the order of probation of five years and the suspension of the sentence of four years and six months in the penitentiary at Leavenworth, was made in the absence of the defendant. Numerous matters are set up in the answer of the warden apparently in palliation of, and as an excuse for, the failure of the officer to take petitioner forthwith before the court as required by section 725 both before and after its amendment on June 16, 1933. Only such part of the numerous matters set up in the answer of the warden will be given as tend to complete the court records in part attached to the petition.
In addition to the court records attached to the petition of appellant, certified copies of the following are attached to the answer of the warden: An application of the probation officer, filed July 29, 1933, alleging that Jack Escoe, the probationer, had violated the provisions of his probation stated generally, and in which he asked: "For an order to issue capias for the arrest of the defendant and deliver the same to probation officer to the end that the defendant may be placed in jail, a motion prepared for the revocation of his suspended sentence and commitment to the United States penitentiary to serve the sentence originally imposed."
The record shows that on the same day the court made the following order:
"The foregoing application of probation officer having been heard and considered by the court,
"Ordered that the clerk file this motion and issue a capias for the arrest of said defendant and deliver the same to Oscar S. Gresham, United States probation officer."
Following this is a warrant bearing date July 31st for the arrest of the probationer, Escoe, directed to the United States marshal. The return of the marshal indorsed on the warrant recites: "Received this writ on the third day of August,...
