United States v. Cook

• Decision Date: 14 June 1927
• Docket Number: No. 5056.,5056.
• Citation: 19 F.2d 826
• Parties: UNITED STATES v. COOK.
• Court: U.S. Court of Appeals — Fifth Circuit

19 F.2d 826 (1927)

UNITED STATES v. COOK.

No. 5056.

Circuit Court of Appeals, Fifth Circuit.

June 14, 1927.

Henry Zweifel, U. S. Atty., of Fort Worth, Tex. (J. Forrest McCutcheon, Asst. U. S. Atty., of Fort Worth, Tex., on the brief), for the United States.

H. C. Wade and Sam R. Sayers, both of Fort Worth, Tex. (Sam J. Callaway and John E. McGinness, both of Fort Worth, Tex., on the brief), for defendant in error.

Before WALKER, BRYAN, and FOSTER, Circuit Judges.

WALKER, Circuit Judge.

In November, 1925, Frederick A. Cook was convicted in the United States District Court for the Northern District of Texas under an indictment charging him with using the United States mails in executing a scheme to defraud, and was sentenced to serve in the United States penitentiary at Leavenworth, Kan., a total of 14 years and 9 months, and to pay a fine of $1,000 on each of the 12 counts on which he was convicted. That judgment of conviction was affirmed by this court in February, 1925. Pursuant to an application made by Cook in February, 1927, while he was confined in that penitentiary and serving the sentence of imprisonment imposed upon him, the court in which he was convicted made an order suspending the execution of said sentence, revoking the order of commitment under which Cook was held in the penitentiary, and placing him on probation for a period of 5 years.

The court was without power to make that order, unless power to make it was conferred by the Act of March 4, 1925, entitled "An act to provide for the establishment of a probation system in the United States courts, except in the District of Columbia." 43 Stat. 1259 (Comp. St. § 10564 4/5). The power to place upon probation is conferred by the following part of section 1 of that act:

"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."

It is not to be doubted that a principal purpose of that act was to confer on designated federal trial courts the power to suspend the imposition or execution of sentence in criminal cases, the lack of which power was strikingly brought to public notice by the decision in Ex parte United States, 242 U. S. 27, 37 S. Ct. 72, 61 L. Ed. 129, L. R. A. 1917E, 1178, Ann. Cas. 1917B, 355. The enactment of the statute was evidence of the conclusion of the lawmakers that the trial courts mentioned should have the power, by suspending the imposition or execution of sentence, and placing the defendant on probation, to give him an opportunity to prove by his conduct that the ends of justice and the best interests of the public, as well as the defendant, will be subserved by postponing the imposition or enforcement of the penalty for the offense of which he was guilty.

That statute cannot properly be given the effect of changing the law which was in existence when it was passed, except so far as the language used discloses an intention to make a change. The law then in existence included the rule that a court cannot set aside or alter its final judgment after the expiration of the term at which it was entered, unless the proceeding for that purpose was begun during that term, or the court's control of the case in which the judgment was rendered is retained in some authorized way (United States v. Mayer, 235 U. S. 55, 35 S. Ct. 16, 59 L. Ed. 129; Ex parte Lange, 18 Wall. 163, 21 L. Ed. 872), the Parole Act, providing for the release on parole of prisoners convicted of an offense against the United States and confined in a United States Penitentiary or prison in execution of a judgment of conviction for a definite term or terms of over one year, or for the term of his...