United States v. Farrell

• Decision Date: 08 February 1937
• Docket Number: No. 10626.,10626.
• Citation: 87 F.2d 957
• Parties: UNITED STATES ex rel. DEMAROIS v. FARRELL, United States Marshal.
• Court: U.S. Court of Appeals — Eighth Circuit

87 F.2d 957 (1937)

UNITED STATES ex rel. DEMAROIS v. FARRELL, United States Marshal.^*

No. 10626.

Circuit Court of Appeals, Eighth Circuit.

February 8, 1937.

Neil Hughes and Alex Kanter, both of Minneapolis, Minn., for appellant.

George F. Sullivan, U. S. Atty., and George A. Heisey, Asst. U. S. Atty., both of St. Paul, Minn., for appellee.

Before GARDNER, THOMAS, and FARIS, Circuit Judges.

THOMAS, Circuit Judge.

This is an appeal from an order of the District Court of Minnesota dismissing a writ of habeas corpus and remanding relator, appellant herein, to the custody of the United States Marshal in order that a hearing on revocation of probation previously granted to the petitioner and which was set for hearing December 11, 1935, might proceed.

The appellant having pleaded guilty in said District Court on the 2d day of June, 1928, to an indictment charging him with violating the National Motor Vehicle Theft Act (18 U.S.C.A. § 408), commonly referred to as the Dyer Act, was sentenced to serve five years in the penitentiary at Leavenworth, Kan., this being the maximum penalty under said act. On the same day an order was entered by the court suspending the sentence and putting the appellant on probation for five years pursuant to the provisions of the Act of March 4, 1925, sections 724 to 727, inclusive, 18 U.S.C. (18 U.S.C.A. §§ 724-727). The terms of both the probation and the sentence would, in due course, have expired on June 2, 1933. The probation order granted freedom from prison subject to the conditions that (1) appellant report during the period of probation at least once in every thirty days to the probation officer designated in the order, and that (2) "during said term of probation said defendant shall commit no crime punishable under the laws of the United States or any State, or Territory of the United States."

Thereafter the appellant failed to report, as required, to the probation officer and on December 1, 1928, the District Court was informed that appellant had violated the terms of his probation and that on September 6, 1928, had been convicted of the crime of burglary in the circuit court of Ashland county, Wis., and had been sentenced by that court to serve a term of one to ten years in the state prison at Waupun, to which prison he was committed on September 24, 1928. Thereupon, without bringing the appellant before the court, without notice and without a hearing, the court entered an order revoking the probation and reinstating the sentence and providing that the sentence, so reinstated, should commence upon the release of the appellant from the Wisconsin state prison.

Pursuant to the order of December 1, 1928, a commitment was issued by the District Court of Minnesota directing the marshal to deliver appellant to the penitentiary at Leavenworth, Kan. The appellant was released from the penitentiary in Wisconsin on January 8, 1935, whereupon the marshal executed the commitment and delivered him to the warden of the penitentiary at Leavenworth on January 9, 1935.

On October 23, 1935, the appellant instituted a proceeding in habeas corpus in the District Court of the United States for the District of Kansas, seeking release from imprisonment at Leavenworth on the ground that the order of the District Court of Minnesota of December 1, 1928, revoking his probation had been entered without notice or hearing, and was void.

While the petition for writ of habeas corpus was pending in the District Court of Kansas, the district attorney in Minnesota filed a petition in the District Court of that state praying for the issuance of a warrant under the probation law for the arrest of appellant and that he be brought before the District Court of Minnesota for a hearing on the matter of the revocation of the order of probation entered on June 2, 1928. On November 4, 1935, a warrant was issued as prayed directing the marshal to arrest appellant and bring him before the court on December 11, 1935, for a hearing on the question of revocation. It is upon the authority of this warrant that the marshal, appellee herein, is now holding appellant, and under which he was held in custody when the instant proceeding in habeas corpus was commenced in which the order of December 10, 1935, was entered and from which this appeal was taken.

Upon the authority of Escoe v. Zerbst, 295 U.S. 490, 55 S.Ct. 818, 79 L.Ed. 1566, it is conceded that the order of the District Court entered on December 1, 1928, revoking the probation was a nullity because the appellant was not given a hearing.

More than five years having expired after June 2, 1928, until the warrant for the arrest of the appellant was issued on November 4, 1935, it is claimed by the appellant that under the law the court had lost jurisdiction, and that its power and authority to cause the arrest of appellant and to revoke his probation had expired. On the other hand, the United States Attorney maintains that the time elapsing after the appellant violated his probation in September, 1928, until his release from the penitentiary in Wisconsin and his recommitment to the federal penitentiary at Leavenworth, Kan., in January, 1935, constituted no part of the probationary term because during that period the appellant was a fugitive from justice.

The probation, as well as the maximum sentence, was for five years. That period had barely commenced to run when appellant violated the conditions of the probation order by failing to report to the probation officer and by fleeing to a foreign jurisdiction in the state of Wisconsin and there committing an offense against the laws of that state for which he was incarcerated in the state penitentiary. This situation gives rise to the real question in this case, which is, When did the five-year period of probation expire? In other words, Was the period of probation tolled while appellant was confined in the penitentiary of Wisconsin outside the jurisdiction of the District Court of Minnesota and while he failed to comply with the conditions of the order of probation, or did the period expire at the end of five years from the date of the order without regard to appellant's wrongdoing?

If the period expired on June 2, 1933, as appellant maintains, without reference to the six and a half years of his confinement in the Wisconsin penitentiary, then the District Court of Minnesota was without power or authority on November 4, 1935, to issue a warrant for his arrest under the probation law. On the other hand, if lapse of time while he was in the state penitentiary is not considered, the court had not lost jurisdiction and the order appealed from should be affirmed.

The contention of the United States Attorney, as counsel for the marshal, is very persuasive upon this point. The analogy between the probation law and the parole law is both striking and complete. Both acts are intended, so far as the public interest will permit, to mitigate the penalties of the criminal law. The probation law applies to persons convicted of a crime and gives to the court a discretion which may be exercised before commitment. The parole law applies to persons convicted and committed to prison, and gives the parole board a discretion to be exercised after commitment. United States v. Murray, 275 U.S. 347, 358, 48 S.Ct. 136, 149, 72 L.Ed. 309.

As it relates to the jurisdiction of the District Court in the instant case, the pertinent part of the probation law (Act of Mar. 4, 1925, c. 521, § 2, 43 Stat. 1260, section 725, 18 U.S.C., 18 U.S.C.A. § 725) is as follows:

"At any time within the probation period the probation officer may arrest the probationer wherever found, without a warrant, or the court which has granted the probation may issue a warrant for his arrest, which warrant may be executed by either the probation officer or the United States marshal of either the district in which the probationer was put upon probation or of any district in which the probationer shall be found and, if the probationer shall be so arrested in a district other than that in which he has been put upon probation, any of said officers may return probationer to the district out of which such warrant shall have been issued. Thereupon such probationer shall forthwith be taken before the court. At any time after the probation period, but within the maximum period for which the defendant might originally have been sentenced, the court may issue a warrant and cause the defendant to be arrested and brought before the court. Thereupon the court may revoke the probation or the suspension of sentence, and may impose any sentence which might originally have been imposed." (Italics supplied.)

The analogous section of the parole law (Act of June 25, 1910, c. 387, § 4, 36 Stat. 820, 18 U.S.C. § 717, 18 U.S.C.A. § 717) is as follows:

"If the warden of the prison or penitentiary from which said prisoner was paroled or said board of parole or any member thereof shall have reliable information that the prisoner has violated his parole, then said warden, at any time within the term or terms of the prisoner's sentence, may issue his warrant to any officer hereinafter authorized to execute the same, for the retaking of such prisoner."

Section 6 of the parole law (18 U.S.C. § 719, 18 U.S.C.A. § 719) further provides:

"If such order of parole shall be revoked and the parole so terminated, the said prisoner shall serve the remainder of the sentence originally imposed; and the time the prisoner was out on parole shall not be taken into account to diminish the time for which he was sentenced."

Similarly section 725 of the probation law provides that when defendant, having been arrested, is brought before the court, "* * * the court may revoke the probation or the suspension of sentence, and may impose any sentence which might originally have been imposed."

It is a settled rule of criminal law in the courts of the United States that the statute of limitations does not run in...