Trant v. United States, 6219.
| Decision Date | 19 June 1937 |
| Docket Number | No. 6219.,6219. |
| Citation | 90 F.2d 718 |
| Parties | TRANT v. UNITED STATES. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Joseph R. Roach, of Chicago, Ill., for appellant.
Michael L. Igoe, U. S. Atty., and A. Bradley Eben, Asst. U. S. Atty., both of Chicago, Ill., for appellee.
Before EVANS and SPARKS, Circuit Judges, and LINDLEY, District Judge.
Mr. Leo Trant was tried and convicted of violating the counterfeiting laws of the United States and sentenced to serve a term of ten years in the penitentiary. On appeal this judgment was affirmed by this court.
The mandate of this court was duly issued and reached the District Court on the 23rd day of March, 1937. Trant then sought probation, but the Marshal took him into custody before his application was presented to the court. His application was filed March 30, 1937. The Marshal took him into custody on March 29, 1937, by virtue of a commitment issued by the clerk under authority of said mandate.
The District Judge deemed himself powerless to hear the application because Trant had been taken into custody in execution of said sentence before the application was made to him.
Appellant appeals from the order dismissing his petition for probation.
Was the District Court without jurisdiction to hear the application for probation?
The District Judge very frankly and fairly set forth his position. From his statement in the order dismissing the petition, we quote:
From this language we understand the court did not pass on the merits of the application, because of lack of authority so to do. In other words, the application was presented after the petitioner was "in the custody of the Attorney General, in execution of said sentence" and therefore was too late.
The authority to place one under sentence on probation must be found in the statute. We must look to the same authority to find the limitations upon the court's authority to act.
The authorities clearly support the major premise of the court's ruling. After one under sentence has entered upon the service of his sentence, the court's power to grant probation is terminated, Cook v. United States, and United States v. Murray, 275 U.S. 347, 48 S.Ct. 146, 72 L.Ed. 309; United States v. Albrecht (C.C.A.) 25 F.(2d) 93; United States v. Benz, 282 U.S. 304, 51 S.Ct. 113, 75 L.Ed. 354; Cisson v. United States (C.C.A.) 37 F.(2d) 330.
The vital and determinative question then is, When does the service of a sentence commence? In other words, where the marshal takes the party under sentence into custody and places him in a local jail pursuant to the sentence and the mandate of the Circuit Court of Appeals, has he commenced the service of his sentence?
Section 709a of title 18 U.S.C.A. reads as follows:
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