Riggs v. United States

• Decision Date: 08 June 1926
• Docket Number: 2471.,No. 2470,2470
• Citation: 14 F.2d 5
• Parties: RIGGS v. UNITED STATES. SAME v. WORKMAN, U. S. Marshal.
• Court: U.S. Court of Appeals — Fourth Circuit

14 F.2d 5 (1926)

RIGGS v. UNITED STATES.^*

SAME v. WORKMAN, U. S. Marshal.

Nos. 2470, 2471.

Circuit Court of Appeals, Fourth Circuit.

June 8, 1926.

A. M. Belcher, of Charleston, W. Va., for plaintiff in error and appellant.

Elliott Northcott, U. S. Atty., of Huntington, W. Va. (William J. Donovan, Asst. Atty. Gen., and B. J. Pettigrew, Asst. U. S. Atty., of Charleston, W. Va., on the brief), for defendant in error and appellee.

Before WADDILL and PARKER, Circuit Judges, and McDOWELL, District Judge.

WADDILL, Circuit Judge.

These two cases, the first named being two criminal prosecutions consolidated by consent, and the second a writ of habeas corpus growing out of the said cases, involve the question of the validity of the sentence imposed upon the plaintiff in error (in criminal case No. 2470), who was defendant in the District Court, and will be referred to hereinafter as defendant. The cases were heard together, because of their relation to each other, and will be considered and disposed of in a single opinion. In the criminal case the defendant was indicted for feloniously having in his possession on the ______ day of March, 1925, intoxicating liquor intended for beverage purposes, in violation of section 3, title 2 of the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138½aa). The said indictment further recited the previous convictions of the defendant for two offenses of the same character, to wit, on the 4th day of December, 1923, and on the 18th day of December, 1924. The defendant was also indicted for unlawfully and feloniously carrying on the business of a retail liquor dealer without having paid the special tax required therefor by law.

The record recites that on the 25th of April, 1925, the defendant agreeing thereto, the two indictments, numbered, respectively, 266 and 288, were ordered to be consolidated, and that thereupon on said day the defendant pleaded guilty to said indictments, and that, "it appearing to the satisfaction of the court that the ends of justice and the best interest of the public, as well as that of the said defendant, will be subserved by the suspension of the imposition or execution of sentence, and by placing the defendant upon probation, it is therefore considered by the court that the said L. J. (Bear Cat) Riggs be placed upon probation for the period of four years."

The record also shows that at a later day, and at another term of court, to wit, on the 21st day of November, 1925, as follows:

"This day came again the United States, by its United States attorney, as well also as the defendant, L. J. (Bear Cat) Riggs, in his own proper person, whereupon the United States made it appear by evidence satisfactory to the court that the said Riggs had violated the terms and conditions of his probation duly imposed upon him by this court on the 25th day of April, 1925, upon the defendant entering pleas of guilty to indictments Nos. 266 and 288, pending against him in this court, charging him, the said L. J. (Bear Cat) Riggs, with a third violation of the National Prohibition Act, and with having carried on the business of a retail liquor dealer without having paid the special tax as provided by law, which cases were consolidated on the date aforesaid.

"The court thereupon proceeded to pronounce judgment upon said pleas of guilty, and here now fixes the term of his sentence of confinement at four years. Therefore it is considered by the court that the said L. J. (Bear Cat) Riggs be confined and imprisoned in the United States penitentiary at Atlanta, Georgia, for the period of four years, and that the United States of America recover no costs from said defendant about her prosecution in this behalf expended, and the said L. J. (Bear Cat) Riggs is remanded to the custody of the marshal of this court."

The assignments of error, as well in the criminal case as in the habeas corpus proceeding, challenges the legality of the District Court's action as above recited, particularly: Its jurisdiction and power to set aside, on the 21st of November, 1925, the probation order of the 25th of April, 1925, made at a previous term of the court, and enter judgment in lieu thereof sentencing the defendant to the penitentiary, as shown by its order of the 21st of November aforesaid; that the indictments alleging unlawful possession of intoxicating liquor charged no offense against the laws of the United States, because the Congress was without power under the Eighteenth Amendment to the Constitution to make the mere possession of intoxicating liquors a criminal offense, and that the act seeking so to do was unconstitutional and void; that the Probation Act of March 4, 1925 (Comp. St. Supp. 1925, §§ 10564 4/5-10564 4/5c), is unconstitutional and void, because it is in conflict with the Constitution of the United States, especially in that it encroaches upon, and in effect deprives the President of, the right to exercise executive clemency in criminal cases; that the court was wholly without jurisdiction, upon the record in the case, to enter any judgment against the defendant, and should have set aside its judgment and discharged the prisoner from custody, as asked for in his petition for habeas corpus. In passing upon these assignments, consideration will first be given to the constitutional questions raised.

First. It is earnestly insisted that the Probation Act of the 4th of March, 1925, is unconstitutional, because the same encroaches upon the pardoning power of the President. Sections 1, 2, and 5 of the Probation Act (43 Stat. c. 521, pp. 1259, 1260 Comp. St. Supp. 1925, §§ 10564 4/5, 10564 4/5a) are as follows:

"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, that 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: Provided, that 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.

"Sec. 2. That when directed by the court, the probation officer shall report to the court, with a statement of the conduct of the probationer while on probation. The court may thereupon discharge the probationer from further supervision and may terminate the proceedings against him, or may extend the probation, as shall seem advisable.

"At any time within the probation period the probation officer may arrest the probationer without a warrant, or the court may issue a warrant for his arrest. Thereupon such probationer shall forthwith be taken before the court. At any time after the probation period, but within the maximum period for which the defendant might originally have been sentenced, the court may issue a warrant and cause the defendant to be arrested and brought before the court. Thereupon the court may revoke the probation or the suspension of sentence, and may impose any sentence which might originally have been imposed. * * *

"Sec. 5. That this act shall take effect immediately."

Sections 3 and 4 (sections 10564 4/5b, 10564 4/5c) provide for the appointment of probation officers and define their functions and authority.

The position taken is clearly untenable, as the act in no way contravenes the constitutional right of the President, in the exercise of executive clemency, and that power of the Chief Executive, in respect to those serving their probationary sentences, is as full and complete as if the probation law had never been enacted. The legislation is of a highly remedial character, and the same should receive a liberal interpretation, having regard to the interests of the unfortunate, in whose behalf it was enacted. It in no way encroaches upon the authority of the Chief Executive, as the authorities clearly establish. The Supreme Court, in considering the authority of the President to pardon, said:

"* * * It extends to every offense known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment." Ex parte Garland, 4 Wall. 333, 380 (18 L. Ed. 366).

That court, in a much later case (242 U. S. 27, 37 S. Ct. 72, 61 L. Ed. 129, L. R. A. 1917E, 1178, Ann. Cas. 1917B, 355), having under consideration the necessity for legislation to enable the courts to indefinitely suspend sentence upon a conviction of a crime, and the course to be pursued in future convictions, said:

"* * * And, so far as the future is concerned, that is, the causing of the imposition of penalties as fixed to be subject, by probation legislation or such other means as the legislative mind may devise, to such judicial discretion as may be adequate to enable courts to meet, by the exercise of an enlarged but wise discretion, the infinite variations which may be presented to them for judgment, recourse must be had to Congress,...