United States v. Murray Cook v. United States

Citation275 U.S. 347,48 S.Ct. 146,72 L.Ed. 309
Decision Date03 January 1928
Docket Number539,Nos. 394,s. 394
CourtUnited States Supreme Court

Mrs. Mabel Walker Willebrandt, Asst. Atty. Gen., for the United states.

Mr. H. C. Wade, of Forth Worth, Tex., for petitioner.

[Argument of Counsel from pages 348-349 intentionally omitted] Mr. Chief Justice TAFT delivered the opinion of the Court.

These cases involve the construction of the Act of March 4, 1925, c. 521, 43 Stat. 1259 (18 USCA §§ 724-727), which provides a probation system for United States courts.

No. 394 came here by certificate from the Circuit Court of Appeals for the Eighth Circuit and we ordered up the entire record. Section 239 of the Judicial Code, Act Feb. 13, 1925, c. 229, 43 Stat. 936, 938 (28 USCA § 346; Comp. St. § 1216).

On October 22, 1926, in the District Court of the United States for the District of Nebraska, the defendant, Glen Murray, pleaded guilty to certain violations of the National Prohibition Act. On October 25, 1926, he was sentenced to three months' imprisonment at the Douglas county jail, at Omaha. On the same day he was delivered by the United States marshal, in pursuance of the sentence, to the jail keeper, and commenced serving it. On October 26th, the next day, and during the same term of court, the District Court entered an order placing him on probation, which read as follows:

'Ordered and adjudged that said defendant, Glen Murray, be placed on probation for the period of two (2) years, under the personal supervision of Robert P. Samardick, who is hereby appointed and constituted probation officer in this case.'

The United States took the case to the Circuit Court of Appeals by writ of error. The question certified to this court by that court was as follows:

Did the United States District Court for the District of Nebraska have authority under the Act of March 4, 1925, 43 Stat. at Large, c. 521, p. 1259, to make during the term at which sentence was imposed the order placing the defendant in error upon probation after he had commenced to serve sentence?

On November 21, 1923, Frederick A. Cook was indicted in the District Court of the United States for the Northern District of Texas; he was convicted on 12 counts charging him with using the United States mails in executing a scheme to defraud within section 215 of the United States Criminal Code (18 USCA § 338), and was sentenced by a district judge designated from another district and circuit to a total of 14 years and 9 months and to pay a total fine of $12,000. He was thereafter confined in the county jail of Tarrant county, Texas, where he remained until after his case had been appealed to the Fifth Circuit Court of Appeals, which affirmed the sentence in February, 1925. In April, 1925, he was transported to the United States penitentiary at Leavenworth, Kansas, to serve his sentence, where he has been confined ever since. In February, 1927, he applied to the regular judge of the district where he had been sentenced to enter an order placing him on probation for a period of five years in the care of a special probation officer under the Probation Act. The application was granted on March 17, 1927. The warden of the penitentiary was directed to release Cook from custody, and one W. Erskine Williams was appointed probation officer to whom Cook should report every six months. The record contains an elaborate opinion of the District Judge upholding his power to make the order.

Objecting to the order, the United States sued out a writ of error to the District Court from the Circuit Court of Appeals. That court held that the Probation Act did not empower the District Court to grant probation to Cook, that the power conferred in the act was not exercisable in a case which had passed beyond the court's control by the rendition of a final judgment and the expiration of the term during which such judgment was rendered. 19 F.(2d) 826. We brought the case here by a writ of certiorari October 31, 1927. 275 U. S. 516, 48 S. Ct. 86, 72 L. Ed. —.

The first question which we must consider, and which, if we decide in favor of the Government, controls both cases and disposes of them, is whether there is any power in the federal courts of first instance to grant probation under the Probation Act, after the defendant has served any part of his sentence. The Probation Act, 43 Stat. 1259, c. 521, provides in its first and second sections as follows:

'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 of 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.

'While on probation the defendant may be required to pay in one or several sums a fine imposed at the time of being placed on probation and may also be required to make restitution or reparation to the aggrieved party or parties for actual damages or loss caused by the offense for which conviction was had, and may also be required to provide for the support of any person or persons for whose support he is legally responsible.

'Sec. 2. That when directed by the court, the probation officer shall report to the court, with a statement of the conduct of the probationer while on probation. The court may thereupon discharge the probationer from further supervision and may terminate the proceedings against him, or may extend the probation, as shall seem advisable.

'At any time within the probation period, the probation officer may arrest the probationer without a warrant, or the court may issue a warrant for his arrest. 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 impose any sentence which might originally have been imposed.'

Its subsequent sections provide for the appointment of one or more suitable persons to serve as probation officers and for their compensation and expenses, make it the duty of the probation officer to furnish to the person released a written statement of the conditions of probation; to keep informed concerning the conduct and condition of each person on probation, and report it to the court, to aid the persons on probation and to bring about improvements in their conduct and condition; to keep records of his work, accounts of the moneys collected from persons under his supervision, and give receipts therefor, and make monthly returns thereof; and to have the same power of arrest as is now exercised by a deputy marshal. The fifth section makes the act to take effect immediately.

The report of the Committee on the Judiciary of the House of Representatives recommending the bill which became the act (Report No. 1377, 68th Congress, 2d Session), stated its purpose and continued:

'Prior to the so-called Killitts Case, rendered in December, 1916, the District Courts exercised a form of probation either by suspending sentence or by placing the defendants under state probation officers or volunteers. In this case, however (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 Supreme Court denied the right of the District Courts to suspend sentence. In the same opinion the court pointed out the necessity for action by Congress if the courts were to exercise probation powers in the future. The language of the court is as follows:

"So far as the future is concerned, * * * recourse must be had to Congress, whose legislative power on the subject is, in the very nature of things, adequately complete.'

'Since this decision was rendered, two attempts have been made to enact probation legislation. In 1917, a bill was favorably reported by the Judiciary Committee and passed the House. In 1920, the Judiciary Committee again favorably reported a probation bill to the House, but it was never reached for definite action.

'If this bill is enacted into law, it will bring the policy of the federal government with reference to its treatment of those convicted of violations of its criminal laws in harmony with that of the states of the Union. At the present time every...

To continue reading

Request your trial
178 cases
  • United States v. Ellenbogen, 197
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • February 27, 1968
    ...of sentence and placing a defendant under the supervision of a state probation officer or volunteer. See United States v. Murray, 275 U.S. 347, 354, 48 S.Ct. 146, 72 L.Ed. 309 (1928). But in Ex Parte United States the Supreme Court held that, without congressional authorization, a district ......
  • U.S. v. Lancer, 73-1795
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • January 30, 1975
    ...482 F.2d 1 (8th Cir., 1973) and cases cited therein. 5 For d discussion of the history of the Probation Act see United States v. Murray, 275 U.S. 347, 357, 48 S.Ct. 146, 72 L.Ed. 309 (1928); Frad v. Kelly, 302 U.S. 312, 58 S.Ct. 188, 82 L.Ed. 282 (1937); Roberts v. United States, 320 U.S. 2......
  • U.S. v. Denson, s. 78-2102
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • February 5, 1979
    ...either by suspending sentence or by placing the defendants under state probation officers or volunteers." United States v. Murray, 275 U.S. 347, 354, 48 S.Ct. 146, 148, 72 L.Ed. 309 (1928). However, in Ex parte United States, 242 U.S. 27, 37 S.Ct. 72, 61 L.Ed. 129 (1916) (the "Killitts " ca......
  • Rowley v. Welch, 7572.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • July 22, 1940
    ...courts were held to have lost jurisdiction for other purposes upon commitment and commencement of service. United States v. Murray, 1928, 275 U.S. 347, 48 S.Ct. 146, 72 L.Ed. 309; Miller v. Snook, D.C.N.D.Ga.1926, 15 F.2d 68; United States v. Albrecht, 7 Cir., 1928, 25 F.2d 93; In re Sulliv......
  • Request a trial to view additional results
2 books & journal articles

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT