Nix v. James
Decision Date | 03 August 1925 |
Docket Number | No. 4601.,4601. |
Citation | 7 F.2d 590 |
Parties | NIX v. JAMES, District Judge. |
Court | U.S. Court of Appeals — Ninth Circuit |
Raymond Benjamin, of San Francisco, Cal., for petitioner.
Louis V. Crowley, of San Francisco, Cal., amicus curiæ.
Samuel W. McNabb, U. S. Atty. and John R. Layng, Asst. U. S. Atty., both of Los Angeles, Cal., for respondent.
Before HUNT, RUDKIN, and McCAMANT, Circuit Judges.
McCAMANT, Circuit Judge (after stating the facts as above).
No procedural questions have been presented in this case for our consideration, and we will assume that the record properly raises the question argued and submitted. This question is whether the Probation Act of March 4, 1925, is applicable to a defendant who was sentenced to imprisonment at a term of court which expired before the act in question was passed, and when the defendant has not yet been imprisoned. Sections 1, 2, and 5 of the Probation Act are as follows:
* * * * * *
Sections 3 and 4 provide for the appointment of probation officers and define their functions and authority.
"In the absence of statute providing otherwise, the general principle obtains that a court cannot set aside or alter its final judgment after the expiration of the term at which it was entered, unless the proceeding for that purpose was begun during that term." U. S. v. Mayer, 235 U. S. 55, 67, 35 S. Ct. 16, 19 (59 L. Ed. 129).
We agree with counsel for respondent that an order putting petitioner on probation and relieving him conditionally from imprisonment would alter the final judgment passed by the District Court and affirmed by this court. This cannot be done unless the Probation Act modifies the well-settled rule of procedure stated in U. S. v. Mayer, supra. A statute is not to be given a construction at variance with established rules of procedure, unless the intent of the legislative department to effect such change is apparent. 25 R. C. L. 1057; State v. Central Vermont R. Co., 81 Vt. 459, 71 A. 193, 21 L. R. A. (N. S.) 949.
The statute plainly contemplates that in cases falling within its purview the District Court shall retain control of the punishment to be meted out after sentence is pronounced and after the expiration of the term. It is provided in section 1 that "the court may revoke or modify any condition of probation, or may change the period of probation"; also that "while on probation the defendant may 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." He may also be required to support those for whose support he is legally responsible. The probationary period may be extended provided that it shall not in its entirety exceed five years. Section 2 provides that the court may discharge the probationer from further supervision or that it may cause him to be arrested and brought before the court. In this latter case authority is given to "impose any sentence which might originally have been imposed." These provisions of the statute clearly authorize the District Court to modify from time to time the sentence imposed on a defendant even after the expiration of the term at which sentence is pronounced.
It may be suggested that these provisions of the statute are applicable only to the cases of defendants who have been put on probation at the time when sentence is imposed. The general power is granted "to suspend the * * * execution of sentence and to place the defendant upon probation." We do not think the power is lost by a failure to exercise it when judgment is pronounced. There are excellent reasons why a defendant should be permitted to sue out a writ of error without forfeiting his right to apply for the benefits of the Probation Act. See the dissenting opinion in Beggs v. Superior Court, 179 Cal. 130, 175 P. 642.
Is the statute applicable to defendants who had been convicted and sentenced at terms of court which expired prior to the enactment of the Probation Act? In answering this question, it becomes material to determine the character of construction which this statute should receive.
In Lovejoy v. Isbell, 70 Conn. 557, 562, 40 A. 531, 533, it is said: A statute which "seeks to supply a public need or to remedy a public evil" is remedial. In City of Montpelier v. Senter, 72 Vt. 112, 114, 47 A. 392, 393, a remedial statute is defined "as one designed to cure a mischief or remedy a defect in existing laws, common or statutory, however arising."
In 2 Lewis' Sutherland on Statutory Construction (2d Ed.) § 583, the author says: "In the modern sense, remedial statutes not only include those which so remedy defects in the common law, but defects in our civil jurisprudence generally, embracing, not only the common law, but also the statutory law." "There are also the three points mentioned by the author to be considered in the construction of all remedial statutes — the old law, the mischief and the remedy."
We think the Probation Act is a remedial statute and as such entitled to a liberal construction. The old law is defined 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. In this case the Supreme Court holds that it is beyond the power of a District Court to postpone indefinitely the execution of a criminal sentence. On pages 51, 52 of the report Mr. Chief Justice White discusses the hardships which arise from time to time in the rigorous unbending enforcement of the letter of the criminal law. By the Probation Act, Congress has undertaken to provide a remedy.
The statute does not expressly exclude from the benefit of its provisions defendants who had been sentenced to imprisonment at terms which expired prior to its enactment. The new power vested in the District Courts is available to them "after conviction or after a plea of guilty or nolo contendere." The statute does not say how soon after conviction or plea the power must be...
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