Ackerson v. United States

• Decision Date: 03 November 1926
• Docket Number: No. 210.,210.
• Citation: 15 F.2d 268
• Parties: ACKERSON v. UNITED STATES.
• Court: U.S. Court of Appeals — Second Circuit

15 F.2d 268 (1926)

ACKERSON v. UNITED STATES.

No. 210.

Circuit Court of Appeals, Second Circuit.

November 3, 1926.

Kenneth M. Spence, of New York City, for plaintiff in error.

Emory R. Buckner, U. S. Atty., of New York City (David P. Siegel and Guido Pantaleoni, Jr., Asst. U. S. Attys., both of New York City, of counsel), for the United States.

Carl Sherman and Edward G. Griffin, both of New York City, filed brief as amicus curiæ.

Before HOUGH, MANTON, and MACK, Circuit Judges.

HOUGH, Circuit Judge (after stating the facts as above).

This writ is properly brought to review a decision of the District Court, final because of the ground upon which that court placed its action or refusal to act. We intimated as much in Re Gilbough, 13 F.(2d) 462, and do not think it of moment whether under existing legislation review is sought by what is technically called an appeal or by writ of error. The only question raised is whether the court below, when application was made, possessed jurisdiction in the premises.

The statutory grant of power is confined to "courts of the United States having original jurisdiction of criminal actions," and the power may be exerted only when it is made to "appear to the satisfaction of the court that the ends of justice and the best interests of the public * * * will be subserved" by exercising that power, which is 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 to the court seems best. No request was made by this plaintiff in error to suspend the imposition of sentence; but the government asserts that the District Court was without jurisdiction to grant a suspension of execution of sentence.

We observe that the statutory power is not only to suspend sentence, but (conjunctively) to place the convict on probation. It may be argued that a mere suspension of sentence, such as was often granted for some 70 years at least, in this circuit, before Ex parte United States, 242 U. S. 27, 37 S. Ct. 72, 61 L. Ed. 129, L. R. A. 1917E, 1178, Ann. Cas. 1917B, 355, is still as unlawful as the case cited made it, because, while the statute has restored suspension of sentence, such restoration is coupled with an obligation to "place on probation" — an entirely new word in federal laws, and one not defined in the statute. We do not express any opinion on the meaning or effect of the phrase "place on probation"; but "probation," whatever it means, is part of the jurisdictional grant.

The objections to jurisdiction as argued may be thus put:

Suspension of sentence, whatever else it is, is an act of mercy, and it is not to be supposed that Congress intended to give an opportunity of dispensing mercy to those who have exhausted all the devices of the law in endeavoring to escape from the consequences of a crime of which the jury adjudged them guilty. The fount of mercy should be deemed closed by the defiance of an appeal.

More technically the sentence of a criminal court is its judgment; a suspension of that sentence is in the nature of a modification of judgment, and it has always been unlawful for a court to alter its final judgment after the expiration of the term at which it is entered. United States v. Mayer, 235 U. S. 55, 35 S. Ct. 16, 59 L. Ed. 129.

Again, after affirmance and receipt of mandate, it is, by a multitude of opinions, the sole duty of the trial court to obey the mandate; and to interpret this statute, so as to permit a total departure from the order of the mandate, is bad law.

If the subject-matter were wholly new, it might be worth while to consider these objections at large; but it is not new, for w...