United States v. Chafina

• Decision Date: 14 September 1926
• Docket Number: No. 2256.,2256.
• Parties: UNITED STATES v. CHAFINA.
• Court: U.S. District Court — District of Arizona

14 F.2d 622 (1926)

UNITED STATES v. CHAFINA.

No. 2256.

District Court, D. Arizona.

September 14, 1926.

George T. Wilson, Asst. U. S. Atty., of Phœnix, Ariz.

Greg Garcia, of Phœnix, Ariz., for defendant.

JACOBS, District Judge.

This is an application by the defendant, Juanita Chafina, for an order suspending the further execution of sentence and placing the defendant upon probation, as provided in the Act of March 4, 1925, known as the Probation Act, c. 521, § 1 (43 Stat. 1259 section 10564 4/5, United States Compiled Statutes Supplement 1925).

The defendant was convicted of a violation of the National Prohibition Act (Comp. St. § 10138¼ et seq.), on the 8th day of May, 1925, and sentenced to a term of two years' imprisonment in the Women's Reformatory at Leeds, Mo., and fined in the sum of $500. Under this judgment, the defendant has been confined in said Women's Reformatory since the 1st day of June, 1925, to the present time.

The first section of the Act of March 4, 1925, reads as follows: "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."

The courts have had little occasion to construe this act, and, after a careful examination, I have found but four cases dealing with the subject. Nix v. James (C. C. A. 9th Cir.) 7 F.(2d) 590; United States v. Nix (D. C.) 8 F.(2d) 759; Archer v. Snook (D. C.) 10 F.(2d) 567; and Kriebel v. United States (C. C. A. 7th Cir.) 10 F.(2d) 762.

The questions involved in this application are: First, the power of the court to admit a defendant to probation after service of the sentence has commenced; second, exercise of this power after the expiration of the term in which the judgment was rendered. The last question has been decided by the Circuit Court of Appeals of the Ninth Circuit in the case of Nix v. James, 7 F. (2d) 590. The first question was decided in the case of Archer v. Snook, supra.

In that case, the defendant was sentenced to serve two years in the penitentiary at Atlanta, but, after serving six months thereof, to be released on probation under the Act of March 4, 1925. The six months' service having expired, he applied to the court for release by habeas corpus. The application was resisted by the warden, on the ground that the suspension provided in the sentence was beyond the power of the judge, and the application was denied, on the theory that the court had no power to alter the substance of the sentence so as to provide for carrying out the terms of the Probation Law. The case was decided February 9, 1926.

On January 13, 1926, the Circuit Court of Appeals of the Seventh Circuit rendered the opinion in Kriebel v. United States, supra, in which the court said: "Relying on United States v. Mayer, 235 U. S. 55, 35 S. Ct. 16, 59 L. Ed. 129, holding that the court cannot set aside or alter its judgment after the expiration of the term at which it is entered, the defendant in error argues that to suspend the execution of a sentence is to set aside or alter the sentence. This seems to have been conceded in Nix v. James, supra. We cannot agree to this. It has never been contended that the statute providing for the release from jail of a poor convict imprisoned for nonpayment of a fine or fine and costs provided a method for setting aside or altering the judgment. It is only a way of relieving from further service under the sentence."

The question involved in the instant case was not present in the case of Nix v. James, and the court in that case said: "It was conceded on the argument of the case at bar that the Probation Act is inapplicable to defendants who have begun service of their terms of imprisonment on the ground that their cases are provided for by the Parole Act Comp. St. §§ 10535-10544. Nothing contained in this opinion must be construed as holding that the Probation Act has any application to a defendant who has entered on the service of his term of imprisonment."

In United States v. Nix, supra, the defendant had not entered upon the service of his term of...