United States v. Felder

• Decision Date: 05 March 1926
• Parties: UNITED STATES v. FELDER et al.
• Court: U.S. District Court — Southern District of New York

13 F.2d 527 (1926)

UNITED STATES v. FELDER et al.

District Court, S. D. New York.

March 5, 1926.

William Hayward, U. S. Atty., of New York City, Hiram C. Todd, Sp. Asst. Atty. Gen., Clifford H. Byrnes, Sp. Asst. Atty. Gen., for the United States.

Frank P. Walsh and Robert S. Johnstone, both of New York City, Thomas W. Hardwick, of Dublin, Ga., and Emanuel Harris, of New York City, for defendant Thomas B. Felder.

Abraham I. Menin, of New York City, for defendant Means.

LINDLEY, District Judge.

The defendant Thomas B. Felder, convicted herein prior to the enactment of the law known as the Probation Act of March 4, 1925 (Comp. St. Supp. 1925, §§ 10564 4/5-10564 4/5c), whose conviction has since said date been affirmed by the Circuit Court of Appeals for this circuit, has filed herein his petition, wherein he prays "that, pursuant to the authority granted by chapter 521 of the Act of Congress approved March 4, 1925, the court may remit the fine of $10,000." The question immediately arises as to whether or not this court has any power to grant the relief prayed.

The Probation Act provides that the court 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. * * * The court may revoke or modify any condition of probation, or may change the period of probation." Section 1 (Comp. St. Supp. 1925, § 10564 4/5).

In interpreting this statute, the Circuit Court of Appeals in the Ninth Circuit, in the case of Nix v. James, 7 F.(2d) 590, held that the Probation Act was applicable to defendants sentenced before the passage of the act, and inferentially, at least, that the court under the said act might have the power to alter or modify the original sentence. The Circuit Court of Appeals for the Seventh Circuit, in the case of Kriebel v. United States of America, 10 F.(2d) 762, held that in such a situation the trial court might suspend the execution of the sentence, but indicated that the court might not modify the sentence.

The law prior to the passage of the act under consideration was stated by the Supreme Court as follows: "In the absence of statute providing otherwise, the general principle obtains 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." U. S. v. Mayer, 235 U. S. 55, 67, 35 S. Ct. 16, 19, 59 L. Ed. 129. The immediate question is: "Has the act of Congress above quoted so altered the prior existing law that the trial court may, after the expiration of its term, modify the sentence by the remission of the entire punishment; that is, in this instance, a fine of $10,000.00?"

The measure of the...