Scalia v. United States, 2695.

• Decision Date: 17 December 1932
• Docket Number: No. 2695.,2695.
• Citation: 62 F.2d 220
• Parties: SCALIA v. UNITED STATES.
• Court: U.S. Court of Appeals — First Circuit

62 F.2d 220 (1932)

SCALIA v.UNITED STATES.

No. 2695.

Circuit Court of Appeals, First Circuit.

December 17, 1932.

Essex S. Abbott, of Boston, Mass. (Joseph V. Carroll, of Boston, Mass., on the brief), for appellant.

Elihu D. Stone, Asst. U. S. Atty., of Boston, Mass. (Frederick H. Tarr, U. S. Atty., of Boston, Mass., on the brief), for the United States.

Before BINGHAM, WILSON, and MORTON, Circuit Judges.

BINGHAM, Circuit Judge.

This is an appeal from a judgment of the District Court for Massachusetts dismissing the petition of Frank Scalia for a writ of habeas corpus and ordering him committed until a fine is paid.

It appears that the petitioner having been indicted at the March term, 1929, of the District Court charged, in the first count, with the unlawful manufacture of intoxicating liquor and, in the second, with the unlawful possession of intoxicating liquor, did, on June 20, 1929, plead guilty to each offense and, on that day, was sentenced generally to pay a fine of $500 and be imprisoned in the House of Correction at Springfield for the term of one year and one day; that, on that day, he was placed on probation for the term of two years to report to the probation officer, McSweeney, as directed by him, the sentence of imprisonment being suspended and the defendant directed to pay the fine of $500 to the probation officer (apparently from time to time during the period of probation).At the June term, 1929, on July 24, 1929, the petitioner was brought before the District Court and, it being represented by the probation officer that he had violated the terms of his probation, the court, without having in terms revoked the probation order and without having in terms revoked or annulled the original sentence of June 20, 1929, imposing a fine of $500 and imprisonment for a year and a day, imposed a new sentence imprisoning the petitioner for the term of four months in the House of Correction at Springfield and ordered that he stand committed until the sentence was performed; that, on that day, he was committed under a warrant issued pursuant to the sentence, which sentence having been served, the petitioner was discharged.

On October 5, 1931, nearly two years after the completion of the sentence imposed on July 24, 1929, the petitioner was brought before the District Court by the probation officer on the ground that he had failed to pay the sum of $500, the same being included in the sentence of June 20, 1929, imposing imprisonment for a year and a day; and, after hearing, it was ordered that the fine be paid and the defendant stand committed until it was paid.Thereupon Scalia filed this petition for writ of habeas corpus asking to be released on the ground that the court was without jurisdiction to impose the fine and order his commitment at the time the last order to pay the fine was made.It is the judgment denying the writ and ordering him committed from which this appeal is taken.

The government's contention is that the judgment of June 20, 1929, was suspended in so far as it imposed imprisonment for the term of a year and a day, but was not suspended in so far as it imposed a fine of $500, and, this being so, the District Court was acting within its jurisdiction and authority on October 5, 1931, when it ordered Scalia forthwith to pay the $500 and stand committed until the same was paid.The petitioner, on the other hand, contends that the judgment of June 20, 1929, as a whole, was in law and fact suspended by what was done, even though the order of suspension referred only to that part of the judgment imposing imprisonment for a year and a day; that immediate execution of that judgment was not then ordered either as to imprisonment or so far as it imposed a fine; that, as the fine was ordered paid to the probation officer (apparently from time to time) and not into court, the order was in effect a suspension of the judgment so far as it related to the fine; and (2) that the judgment of June 20, 1929, was a single judgment made up of two component parts, the imprisonment and fine, and that, whether the judgment was suspended in whole or only as to the part imposing imprisonment, nevertheless on July 24, 1929, when Scalia was brought before the District Court for violating the terms of his probation and a new judgment was entered imposing a sentence of imprisonment for the term of four months and ordering him committed until sentence was performed, this was in law and in fact a revocation of the probation and of the suspension of sentence of June 20, 1929, and a substitution of a new sentence, doing away with the original one of June 20, 1929, in its entirety; and that, consequently, the District Court was without jurisdiction and authority to order his incarceration for failure to pay the fine imposed by the original judgment or sentence.

We think the judgment of June 20, 1929, was suspended entirely by what was done; and, although the order of suspension referred only to that part of the judgment imposing imprisonment for a year and a day, the execution of the remaining part, the fine, was not then ordered paid forthwith into court but was to be paid to the probation officer.This was in itself a suspension of the judgment as to the fine and was authorized by the Probation Act.The provisions of section 1 of the Probation Act(18 USCA § 724) in terms authorize the court to require a defendant, at the time he is placed on probation, to pay a fine which has been imposed on him to...