Kriebel v. United States

• Decision Date: 13 January 1926
• Docket Number: No. 3689.,3689.
• Citation: 10 F.2d 762
• Parties: KRIEBEL v. UNITED STATES.
• Court: U.S. Court of Appeals — Seventh Circuit

10 F.2d 762 (1926)

KRIEBEL v. UNITED STATES.

No. 3689.

Circuit Court of Appeals, Seventh Circuit.

January 13, 1926.

Robt. N. Golding, of Chicago, Ill., for plaintiff in error.

John E. Byrne, of Chicago, Ill., for the United States.

Before ALSCHULER, PAGE, and ANDERSON, Circuit Judges.

ANDERSON, Circuit Judge.

Plaintiff in error was indicted, tried, and convicted in the court below for violation of sections 215 and 37 of the Criminal Code (Comp. St. §§ 10201, 10385), and on December 3, 1923, was sentenced to serve three years and a day in the United States penitentiary at Leavenworth, Kan., and to pay a fine of $5,000. He sued out a writ of error to this court and supersedeas was granted. On March 12, 1925, the judgment was affirmed. A petition for rehearing was filed, and on October 21, 1925, denied. On the next day this court entered an order staying the mandate until the further order of the court. The stay was granted to give the plaintiff in error an opportunity to petition the Supreme Court to review the order of this court. This petition was denied, and on December 4, 1925, this court issued its mandate to the court below, directing "that such further proceedings be had in said cause as according to right and justice, and the laws of the United States, ought to be had, the said writ of error notwithstanding."

On December 10, 1925, plaintiff in error filed in the court below a petition for probation under the Act of March 4, 1925 (Comp. St. Supp. 1925, §§ 10564 4/5-10564 4/5c). After setting forth the above facts, and giving reasons why he asked the benefits of the act, he prayed the court "to admit him to the benefits of said act, and to suspend the execution of sentence, and to place him upon probation for such period and upon such terms and conditions as the court may deem best." Upon this petition the court below entered the following order:

"This cause coming on to be heard this 10th day of December, A. D. 1925, on the petition of Fred L. Kriebel, defendant, filed December 10, A. D. 1925, to admit him to probation pursuant to the terms of the act of Congress entitled `An act to provide for the establishment of a probation system in the United States courts, except in the District of Columbia,' and the court, having examined so much of, and only so much of, said petition as alleges that judgment was entered on December 3, 1923, and that said judgment was affirmed by the Circuit Court of Appeals for the Seventh Circuit on March 12, 1925, and that a rehearing thereon was denied by said court on October 1, 1925, and that the mandate of said court has been received by this court, doth find that this court, after affirmance of said judgment and after the expiration of the term of this court, at which it was entered has expired, is without and has no jurisdiction or power to entertain or hear said petition, or to admit the defendant to probation under the terms of said act of Congress. It is therefore by reason of the premises, and only by reason thereof, ordered that the prayer of said petition be denied. An exception is allowed defendant to the entry of this order."

The District Court ruled that, because the petition was filed after the term at which sentence was imposed, and after the affirmance of the judgment here, it was without power to entertain the petition. This ruling is assigned as error, and the question presented is whether the court below had power under the facts stated to hear and decide the petition.

The Circuit Court of Appeals of the Ninth Circuit had this question before it in Nix v. James, 7 F.(2d) 590, and decided that the District Court could and should hear a petition under the act after the expiration of the term and after affirmance on writ of error. We agree with the conclusions there reached, and think there are additional reasons for so holding in the case now under consideration. The Supreme Court having decided 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 the District Courts were without power to suspend permanently the imposition or execution of sentence, Congress passed the Probation Act to enable them to do so. The power is granted in the first section of the act. So far as it is pertinent to the question now under consideration it reads:

"The courts of the United States having original...