United States v. Albrecht
| Decision Date | 17 February 1928 |
| Docket Number | No. 3963.,3963. |
| Citation | 25 F.2d 93 |
| Parties | UNITED STATES v. ALBRECHT et al. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Ralph F. Lesemann, of East St. Louis, Ill., for the United States.
William M. Acton, of Danville, Ill., for defendants in error.
Before ALSCHULER, EVANS, and PAGE, Circuit Judges.
The United States brings this writ of error from an order of the District Court placing on probation the defendants in error, who, on March 31, 1924, were convicted for violation of the National Prohibition Act (27 USCA), and each sentenced to pay a fine of $3,500 and to imprisonment in the Vermilion county, Illinois, jail for one year.
Both were admitted to bail pending the disposition of writ of error to the Supreme Court, which, on January 3, 1927, affirmed the judgment. February 19, 1927, the mandate of the Supreme Court was filed in the District Court. February 24, 1927, upon a duly issued warrant of commitment, both were taken to the jail, where they commenced serving their respective sentences of imprisonment.
February 5, 1927, after the affirmance by the Supreme Court and before the mandate was filed in the District Court, defendants in error orally petitioned the District Court to be placed on probation. The court took the matter under advisement, and on March 5, 1927, at the adjournment of the September term, 1926, continued the petitions to the March term, 1927.
On May 27, 1927, written petitions for probation, designated amended petitions, were filed, and on June 11 a hearing was had and an order entered placing both defendants in error on probation, viz., Albrecht, Jr., at the expiration of 4 months' imprisonment under his sentence to be released and placed on probation for a period of 18 months from that date, and Albrecht, Sr., at the expiration of 8 months' imprisonment under his sentence, to be released and placed on probation for a period of 18 months from that date.
It is the government's principal contention that, because defendants in error had commenced serving their sentences before the order for probation was entered, the court was without power to place them on probation.
Since the argument of this cause the Supreme Court handed down its opinion in United States v. Murray, and Cook, Petitioner v. United States, 48 S. Ct. 146, 72 L. Ed. ___, January 3, 1928, which leaves no room for doubt on this proposition. Murray had served one day of a three months' jail sentence when the court made an order placing him on probation. Cook was serving his penitentiary sentence when the court ordered him placed on probation. The Supreme Court unqualifiedly held that, after...
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