United States v. Mulligan, 311.
| Decision Date | 06 April 1931 |
| Docket Number | No. 311.,311. |
| Citation | 48 F.2d 93 |
| Parties | UNITED STATES ex rel. GROSSBERG v. MULLIGAN, Acting U. S. Marshal. |
| Court | U.S. Court of Appeals — Second Circuit |
David P. Siegel, of New York City (Leo H. Klugherz and Milton B. Seasonwein, both of New York City, of counsel), for petitioner-appellant.
George Z. Medalie, U. S. Atty., of New York City (Ellamarye Failor, Asst. U. S. Atty., of New York City, of counsel), for respondent-appellee.
Before L. HAND, CHASE, and MACK, Circuit Judges.
Relator pleaded guilty to a mail fraud indictment after a jury had acquitted his codefendant and disagreed as to his guilt; thereupon he was ordered placed on probation for two years. By the express terms of the order, he was directed to report once in each month to the probation officer; what he was to report and how he was to act under probation were not specified in the order. The judge, however, gave him verbal instructions as to his conduct, and the probation officer, pursuant to the Probation Act § 4 (title 18, U. S. Code, § 727 18 USCA § 727), furnished him with a written statement of the conditions of probation and gave him further written instructions as to his conduct.
Some months later, on the receipt of complaints that relator was committing acts similar to those for which he had been tried, the probation officer filed an application for revocation of the probation and imposition of sentence. Relator was duly notified of the fact and the substance of the application. A full hearing was had before the judge who had tried the case. Relator testified in his own behalf. The judge, after stating that he had given some terms of probation verbally and that these had been broken, imposed a sentence of imprisonment for a year and a day. Appeal therefrom was dismissed for failure to file the record in proper time.
Thereupon a writ of habeas corpus was sued out. This writ was dismissed on the ground that the question of jurisdiction to revoke the probation had been raised and decided adversely to relator in the revocation proceedings. The cause is before us on an appeal from the order dismissing the writ.
Relator asserts lack of jurisdiction to sentence him, on his contention that under the Probation Act § 1 (18 USCA § 724), jurisdiction to revoke probation and impose sentence is dependent upon allegation and proof that some term or condition expressed in the probation order has been broken, and that there was neither allegation nor proof of a breach of the only express condition, to report monthly to the probation officer.
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, held that, at common law, sentence must be imposed and could not be permanently suspended after conviction or plea of guilty, and that, on application of the government, the District Judge could be mandamused to impose sentence. By the Probation Act § 1 (18 USCA § 724), however, the courts are given the power "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." They may "revoke or modify any condition of probation"; the term of probation, however, may not exceed five years. By Probation Act § 2 (18 USCA § 725), the defendant may be brought before the court for sentence not only within the probation period, but even thereafter; the only limitation is that it be within the maximum period for which sentence could have been imposed. The court may thereupon "revoke the probation or the suspension of sentence, and may impose any sentence which might originally have been imposed."
We express no opinion on a defendant's right, in order to forestall the risk of the imposition of...
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Dow v. State
...Court, however, has reached the opposite conclusion. Coleman v. State, 1963, 231 Md. 220, 189 A.2d 616. Also, United States ex rel. Grossberg v. Mulligan, 2nd Cir., 48 F.2d 93. See, 24 C.J.S. Criminal Law § 1656, page 1020, and cases cited at note We concede that probation-revocation hearin......
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Ex parte Medley
...like construction. Williams v. Hunter, 10 Cir., 165 F.2d 924; Whitehead v. United States, 6 Cir., 155 F.2d 460; United States ex rel. Grossberg v. Mulligan, 2 Cir., 48 F.2d 93; Hollandsworth v. United States, 4 Cir., 34 F.2d 423; Campbell v. Aderhold, D.C., 36 F.2d 366; Archer v. Snook, D.C......
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United States v. Glasgow, Crim. No. 1028-73.
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