Burns v. United States, 6798.

• Court: U.S. Court of Appeals — Ninth Circuit
• Writing for the Court: WILBUR and SAWTELLE, Circuit , and NETERER
• Citation: Burns v. United States, 59 F.2d 721 (9th Cir. 1932)
• Decision Date: 20 June 1932
• Docket Number: No. 6798.,6798.
• Parties: BURNS v. UNITED STATES.

59 F.2d 721 (1932)

BURNS v. UNITED STATES.

No. 6798.

Circuit Court of Appeals, Ninth Circuit.

June 20, 1932.

Otto Christensen, of Los Angeles, Cal., for appellant.

Samuel W. McNabb, U. S. Atty., and Harry Graham Balter, Asst. U. S. Atty., both of Los Angeles, Cal.

Before WILBUR and SAWTELLE, Circuit Judges, and NETERER, District Judge.

WILBUR, Circuit Judge.

This appeal is taken by appellant from an order revoking a probationary order upon the suspended execution of a sentence of five years in the United States penitentiary at McNeil Island, state of Washington, and issuing a commitment in accordance with the original sentence.

The appellant pleaded guilty to three counts of an indictment and on May 4, 1931, was sentenced upon the first count to imprisonment in the Los Angeles County jail for a period of one year, and on the second count was fined $2,000, and to stand committed to the Los Angeles County jail until paid; on the third count was sentenced to five years imprisonment in McNeil Island penitentiary. The probationary order is as follows: "Execution of said sentence of imprisonment on the third count is suspended during such time as the defendant reports regularly every three months in writing, beginning with this date, to the Federal Probation Officer of this court; during which time he entirely refrains from any violation of any law with the possible exception of parking and traffic ordinances, and in all respects conduct himself as a law abiding citizen. In case of the violation of the terms of probation, the defendant will be brought before the Court and sentenced."

On January 21, 1932, appellant was brought before the court for hearing on the question of the revocation of probation. Thereupon, without previous notice to the defendant, the judge announced his intention of proceeding with the hearing. Upon request of the appellant, the hearing was postponed for one hour, during which time he secured the attendance of an attorney to represent him on the hearing. The attorney requested a continuance of the hearing, but this was refused. The court stated: "The newspapers for several days have been full of accounts reflecting, in most serious measure and degree, upon this defendant who pleaded guilty to certain offenses, was given a jail sentence and also sentenced to a term in the Federal Penitentiary, which was suspended during the period of his good behavior. This is an extremely simple matter that the Court has before it. The question is whether he has violated the terms of his probation. The matter was brought to the attention of the Court by the United States attorney's office, whereupon the Court ordered that the defendant be brought before the Court. We are here now to investigate. I don't feel that it is a matter in the nature of a trial, and, inasmuch as the matter has been brewing for several days, and the defendant himself might have anticipated such a proceeding, I see no harm in going ahead with the proceedings necessary to determine the question before the Court. Therefore, the request for a continuance is denied."

Thereupon, and over the objection of the appellant, testimony was adduced to the general effect that during the period for which the appellant had been committed to the Los Angeles county jail he had frequently been absent from the jail. The order of the court revoking probation was based upon this proposition, as appears from the statement of the court at the conclusion of the hearing:

"Now, gentlemen, there is enough obviously before this court to show that the spirit of the probation was not in any sense complied with. The idea that one person sentenced to the county jail should over a period of 3 months a little bit more than 3 months, be taken out for on 15 different occasions from 10 o'clock in the morning until 9 o'clock at night, oftentimes, that of itself is something that should bring the blush of shame to anybody entrusted with the execution of the law.

"That fact alone is contrary entirely to the spirit of probation. Probation supposes penitence, a degree of penitence. I very much regret that any court should be compelled to listen to the failure of performance of the official duty that has been related here today. And my earnest suggestion is that that prisoner and everybody else stand hushed when the instruments of the law are made the convenience, the accommodation, the servants of the defendants.

"The probation given to this defendant, granted this defendant is cancelled, nullified, and it is ordered that forthwith the United States marshal execute the sentence originally pronounced, that being confinement in the Federal penitentiary at McNeil's Island, in the State of Washington, for the period of 5 years."

Upon the hearing, one A. P. Rumburg, special agent of the United States Department of Justice, testified that he saw the appellant on August 18, 1931, at appellant's home; that he investigated the jail records, and ascertained therefrom that upon the ostensible authority of an order of the United States District Judge appellant had been absent from the jail on fifteen different days for periods ranging from three hours and fifty-eight minutes to thirteen hours; that the records of the county jail showed that with the exception of one day the appellant was released in the custody of the United States Deputy Marshal Lessner, and on that day to one Jones; that he had ascertained that a United States District Judge had authorized appellant's release for the purpose of taking him to a dentist; that the order was in writing dated May 8; that at the time of the visit to appellant's house on May 18 United States Deputy Marshal Lessner stated that he had taken the appellant from the county jail upon an order of the United States District Judge.

Appellant's counsel objected to the introduction of jail records, cross-examined the witness at some length, but was not permitted to continue the cross-examination as long as he desired, and excepted to the refusal of the court to permit further examination.

R. S. Zimmerman, clerk of the court, testified that, while it was the usual practice to have an order entered before a prisoner could be released from the county jail, no such order had been entered ordering the release of appellant.

The appellant testified on his own behalf that he had been in the county jail eight and one-half months on his sentence, and during all but thirty days of that time he had been a trusty. With reference to his absence from the county jail he testified as follows:

"`Q. Do you know how you happened to be taken out of the jail house? A. Why, if I don't remember wrong, I think that Ames Peterson, I think that was he who it was that went to Judge James and explained the situation that my teeth were bad, that he would like to have the court order me to go to a dentist to have them repaired. And Judge James, he got it.'

"That at the times he was out of the county jail he went to the dentist's office; that he saw the orders; that there was more than one order issued; that he didn't remember the exact wording of them; that one Jones had an order to take him out also and he guessed that it was for only once, and that Lessner had the other order.

"`Q. Do you recall whether those orders were for treatments or for specific occasions? A. For treatments.'

"That he had a lot of work done and as a matter of fact he was not finished with it yet."

"`Q. And actually what — would he give you treatments? A. Oh, yes, sir. Sure; you can look at my mouth and see that work that is unfinished right now.

"`Q. How long would he work on your mouth each time you were there? A. Oh, it is according as to how much I could stand; an hour or an hour and a half; sometimes more. I would rest a little while; he would work more.

"`Q. What was the name of your dentist? A. It has been so long since I have been there, I can't really recollect what is his name.

"`What is his office at? A. Hollywood Boulevard and Cherokee Street.'

"That when he went to this dentist and left the county jail that he would go under the assumption that he could legally do so under a court order; that he absolutely did not pay anybody to get out or perform any favors for him while he was out; that he never rewarded Mr. Jones or Mr. Lessner on any of these occasions, but might have given them a cigar. * * *

"`I could look in a phone book and tell you in a moment the name of the dentist'; that he did not go to the dentist each and every time that he went out of jail; `I would call him and if he could take me if he wasn't, his appointments were not all made for that day, he would take me; it was only a couple of times that I didn't — just a few times.'

"`Q. By Mr. Redwine. Now, the record shows on May 30th, you left the jail on May 30th, at 10 o'clock a. m. and did not return until 9:06 p. m. You were not in his office all of that time? A. No, sir, I don't remember the incident, but I don't suppose I was.

"`Q. What did you do? A. Well, I might have had something to eat.

"`Q. What else did you do? A. That is all.

"`Q. Well, what were you doing until 9:06 p. m. in the evening? A. Well, listening to the radio, something like that.

"`Q. Where were you listening to the radio? A. At my home.

"`Q. How many times did you go to your home when you were really supposed to be going to the dentist? A. Well, I really couldn't tell you, just quite a few times.

"`Q. Most of the time? A. Pretty near.

"`Q. Did you give Mr. Lessner anything for taking you to you home? A. Absolutely not.

"`Q. Do you know why it was that he should be willing to stay out until 9, and after 6 o'clock at night when he took you down to your home if you didn't give him any remuneration? A. I don't know. I never give him any remuneration.

"`Q. Did you give him any liquor of any kind? A. Absolutely not.

"`Q. Well now, on May 14th, you were taken out of jail at 9:25 a. m. and returned at 4:50 p. m. Were you in the...