United States v. Feller

• Citation: 156 F. Supp. 107
• Decision Date: 15 November 1957
• Docket Number: No. 1726-KB.,1726-KB.
• Parties: UNITED STATES of America, Plaintiff, v. Thomas FELLER, Defendant.
• Court: U.S. District Court — District of Alaska

156 F. Supp. 107

UNITED STATES of America, Plaintiff, v. Thomas FELLER, Defendant.

No. 1726-KB.

District Court, Alaska First Division, Ketchikan.

November 15, 1957.

Roger G. Connor, U. S. Atty., Juneau, Alaska, and C. Donald O'Connor, Asst. U. S. Atty., Ketchikan, Alaska, for plaintiff.

E. E. Bailey, of Stump & Bailey, Ketchikan, Alaska, for defendant.

KELLY, District Judge.

This matter comes before this court on an appeal from the United States Commissioner's Court in Ketchikan from the revocation of a portion of a sentence which had been suspended by said Commissioner, who imposed certain conditions to be observed by the probationer, which said Commissioner found to have been violated. The pertinent facts leading up to this situation are substantially as follows:

On or about August 27, 1956, the defendant Thomas Feller and his crew on the seine boat Evelyn Raye were fishing commercially for salmon near Emerald Bay in Ernest Sound, Southeastern Alaska, in an area then closed to commercial fishing. As a result of this violation, Feller and his crew were apprehended and on October 3, 1956, Feller pleaded guilty and was fined $1,200, and a jail sentence of four (4) months was imposed and suspended upon the condition, among others, that he violate no Federal or Territorial laws or any municipal ordinances. The severity of the sentence was occasioned by the fact that Feller had been convicted earlier in the same season for another fisheries violation and had been three times convicted of fishing violations in his lifetime.

On November 15, 1956, the defendant Feller was arrested for hunting and killing deer with the aid of artificial light. As a result of this charge, an attempt was made in the month of December, 1956, to try the case at Wrangell. However, weather conditions prevented the government attorney from arriving at Wrangell and accordingly the case was postponed.

Due to the pressure of work in the United States Attorney's office, another trial date could not be arranged until January 16, 1957, when there was a trial in Wrangell in which the jury was unable to reach a verdict.

Procedural delays, the expense to the government of additional trials at Wrangell, and the beliefs that suspended sentences would become ineffectual unless acted upon promptly and soon after the alleged violation, and that justice would be best served thereby, led to a petition being filed for the revocation of the sentence previously suspended by the United States Commissioner in Ketchikan in October, 1956.

A hearing for revocation was held in Ketchikan on the 26th day of July, 1957, and the hearing resulted in a finding by the Commissioner that Feller had violated the terms of his probationary sentence. The Commissioner imposed two months of the previously suspended sentence to be served, and the defendant has appealed.

It should be noted that the original sentence was imposed on October 3, 1956. On November 15, 1956, the defendant was arrested and charged with hunting and killing deer with the aid of artificial light. Trial was held on this charge on January 16, 1957, and the jury disagreed. Other proceedings taken in the case, involving a number of matters which are not pertinent here, caused further delay, and the hearing for the revocation of the suspended sentence was held before the Commissioner who had passed the sentence on the 26th day of July 1957, and at that hearing the Commissioner revoked two months of the suspended sentence and ordered that they be served. Verbal notice of appeal was given immediately on said 26th day of July, 1957, and on the 22nd day of August, 1957, transcript of appeal was filed in the District Court at Ketchikan. The fall term of this court in Ketchikan began on October 14, 1957; the one year from the time the original sentence was imposed by the United States Commissioner expired on October 3, 1957.

This Court heard testimony and every opportunity was provided for the appellant to produce all evidence he desired. The government witnesses testified fully regarding the facts surrounding the alleged violation. This Court held a trial "de novo" covering the matter appealed to this court from the Commissioner's decision.

This Court finds that the facts reveal that the defendant Feller violated the terms of his probation by hunting deer in violation of the laws and regulations as charged by the Federal officials.

Although the defendant Thomas Feller was not on trial before the District Court on the charge of illegally shooting deer, testimony was introduced which amply indicated to this Court that the said defendant was engaged in killing deer illegally as charged. While a jury might reach a different verdict in case of trial, nonetheless the Court which originally imposed the sentence at the revocation hearing, was amply justified in...