Hollandsworth v. United States

Decision Date15 July 1929
Docket NumberNo. 2856.,2856.
Citation34 F.2d 423
CourtU.S. Court of Appeals — Fourth Circuit

Carl C. Sanders, of Beckley, W. Va., for appellant.

Ellis A. Yost, Asst. U. S. Atty., of Huntington, W. Va. (James Damron, U. S. Atty., of Huntington, W. Va., on the brief), for the United States.

Before PARKER, Circuit Judge, and WATKINS and SOPER, District Judges.

SOPER, District Judge.

The appeal in this case involves a consideration of the powers conferred upon the District Courts by the Act of March 4, 1925, c. 521, § 1, 43 Stat. 1259, USCA tit. 18, §§ 724 to 727, to suspend the imposition or execution of sentences in criminal cases and place the defendants upon probation.

On June 14, 1927, an information was filed against Ed Hollandsworth, the defendant below, by the United States attorney, wherein the defendant was charged in three counts with violations of sections 3 and 21 of title 2 of the National Prohibition Law (27 USCA §§ 12, 33). The first count charged unlawful possession of intoxicating liquor, and alleged that the defendant was guilty of a second offense, since he had been previously convicted of unlawful possession of intoxicating liquor; the second count charged the unlawful sale of intoxicating liquor; and the third count charged the maintenance of a common nuisance, in that the defendant maintained a place where intoxicating liquor was manufactured, kept, bartered, and sold. The defendant pleaded guilty to the charges contained in the information on July 11, 1927, and the court took time to consider its judgment. On November 16, 1927, the defendant was brought before the court for sentence. The court imposed a fine of $25, and, reciting that it appeared to the satisfaction of the court that the ends of justice and best interests of the public and of the defendant would be subserved by the suspension of the imposition or execution of sentence, and placing the defendant upon probation, ordered that the defendant be placed upon probation for a period of five years. It is conceded that the defendant paid the fine imposed.

On November 19, 1928, more than a year after the passage of the last-mentioned order, a capias for the defendant's arrest was issued by the clerk of the court at the instance of the probation officer. In accordance therewith, the defendant was taken into custody on November 27, 1928. He was brought before the court on December 15, 1928, and it was made to appear to the court by satisfactory proof that the defendant had violated the terms and conditions of his probation, whereupon the court inquired of the defendant if he had anything to say why sentence should not be imposed upon him upon the plea of guilty tendered on July 11, 1927, to which inquiry the defendant answered in the negative; whereupon the court pronounced judgment and imposed upon the defendant a sentence of imprisonment in jail for the period of twelve months. From this judgment the defendant has appealed.

There are numerous assignments of error, but the objections of the defendant to the sentence of imprisonment, imposed by the District Court on December 15, 1928, may be summarized as follows: (1) That the legal import and effect of the action of the court, taken on November 16, 1927, was that a final sentence was imposed upon the defendant and the attempt to place him on probation was ineffectual. The contention is that the court, having imposed a fine of $25 upon the defendant on that date, had no power at a later term to render a second judgment and impose a sentence of imprisonment. It is said that the sentence or judgment of a court in a criminal case is an entirety, and must embrace the whole measure of the punishment imposed, and cannot be imposed in parts; and although a court may suspend judgment in a criminal case in toto until another term, it has no power to impose two sentences for a single offense by pronouncing judgment under one count in an indictment and reserving the right to impose an additional punishment under another count at a subsequent term, or to impose a fine at one term and at a later term a sentence of imprisonment. (2) That the maximum sentence of imprisonment which the District Court could have imposed upon the defendant was a term of twelve months, and that the District Court has no power under the Probation Act (18 USCA §§ 724-727) to fix the term of probation in any case at a longer period than the maximum sentence applicable to the offense charged, and hence that the court was without power to fix the term of probation at five years, and was also without power, after the expiration of the period of one year, to cause the defendant to be brought in and sentenced. (3) That it is incumbent upon the District Court when it places a defendant upon probation under the Probation Act to fix the terms and conditions of probation, and that the District Court in the instant case failed to specify terms and conditions, and hence the act of the court in placing the defendant upon probation on November 16, 1927, was void and the sentence that the defendant pay a fine of $25 constituted the complete judgment of the court, to which the court was without power to add an additional sentence of imprisonment at a subsequent date.

It was decided by the Supreme Court of the United States in 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, that a District Court of the United States, in the absence of a statute, does not possess the power to suspend sentence in a criminal case except for some definite period and for some specific temporary purpose. In harmony with this rule it has been settled by the decisions of this court in Gillespie v. Walker, 296 F. 330, Fisher v. Walker, 296 F. 335, and Strickling v. Walker, 296 F. 337, that a District Court, after the rendition of its judgment under one count of an information, has no power to render a second judgment at a later term against the accused under another count of the same information, even though a continuance was had to a later date, with a view of considering the action to be taken under the second count; and the rule holds good whether the court attempts to impose the second judgment in the same or a subsequent term of court. In the Gillespie Case, Judge Waddill said (page 333 of 296 F.):

"The ends of justice require that the judgment when entered shall be as a single judgment — that is, entered at one time, covering and carrying out the jury's verdict — and that to allow the entry of judgment under some phases of the case at one time, and some other phases at another time, as presented by the different counts, would operate necessarily to the prejudice of an accused, possibly in effect placing him in jeopardy for the same offense more than once, and leave in indefinite suspense, the enforcement and carrying out of the law, which would be alike undesirable from a governmental stand-point, and wholly unfair to an accused."

See, also, United States v. Mayer, 235 U. S. 55, 67, 35 S. Ct. 16, 59 L. Ed. 129.

It follows, therefore, that, unless the Probation Act furnishes some authority for the release of a defendant upon probation and a suspension of sentence of imprisonment until a later time, together with the imposition of a fine imposed contemporaneously with the release of the defendant upon probation, the first point of the defendant is well taken. Section 1 of the Probation Act (title 18, USCA § 724) is as follows:

"The courts of the United States having original jurisdiction of criminal actions, except in the District of Columbia, when it shall appear to the satisfaction of the court that the ends of justice and the best interests of the public, as well as the defendant, will be subserved thereby, shall have power, after conviction or after a plea of guilty or nolo contendere for any crime or offense not punishable by death or life imprisonment, 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; or the court may impose a fine and may also place the defendant upon probation in the manner aforesaid. The court may revoke or modify any condition of probation, or may change the period of probation. The period of probation, together with any extension thereof, shall not exceed five years.

"While on probation the defendant may be required to pay in one or several sums a fine imposed at the time of being placed on probation and may also be required to make restitution or reparation to the aggrieved party or parties for actual damages or loss caused by the offense for which conviction was had, and may also be required to provide for the support of any person or persons for whose support he is legally responsible."

It would seem to be clear that the course of action of the District Court in imposing a fine, and at the same time placing the defendant upon probation for a definite period, was expressly authorized by the section quoted. The defendant, however, relying upon the decision of the District Court in Archer v. Snook, 10 F.(2d) 567, contends that, when the court imposed a fine and required it to be paid, its function was completely carried out, and it was without power to place the defendant upon probation. The argument seems to be that, although the court has the power to require the payment of a fine as a condition of probation, it cannot otherwise sentence the defendant to pay a fine in connection with probation. We find nothing in the case cited which justifies this position, and we think that it is clear from the language set out that, although the court may in its discretion require the defendant, as one of the terms of probation, to pay a fine in one or several sums imposed at the time of being placed on probation, the court is expressly authorized by the language of the statute to impose a fine (whether it be made a...

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