Weber v. Squier, 9846.

• Decision Date: 02 March 1942
• Docket Number: No. 9846.,9846.
• Citation: 124 F.2d 618
• Parties: WEBER v. SQUIER, Acting Warden.
• Court: U.S. Court of Appeals — Ninth Circuit

124 F.2d 618 (1941)

WEBER v. SQUIER, Acting Warden.

No. 9846.

Circuit Court of Appeals, Ninth Circuit.

December 29, 1941.

Writ of Certiorari Denied March 2, 1942.

Max Weber in pro. per. for appellant.

J. Charles Dennis, U. S. Atty., and Frank Hale and Gerald Shucklin, Asst. U. S. Attys., all of Tacoma, Wash., for appellee.

Before DENMAN, STEPHENS, and HEALY, Circuit Judges.

Writ of Certiorari Denied March 2, 1942. See 62 S.Ct. 800, 86 L.Ed. ___.

STEPHENS, Circuit Judge.

Appellant, or petitioner as we shall hereinafter designate him, is confined in a United States penitentiary and he claims the right to freedom through the medium of the writ of habeas corpus filed in the District Court. That court issued its show cause order and after hearing declined to issue the writ and dismissed the petition. This appeal followed.

The record shows upon its face that petitioner pleaded guilty in the District Court to counts numbers two and four of an indictment containing several charges of a felonious character.

On September 13, 1934, petitioner was sentenced, the pronouncement of the judge being in part as follows:

"On the fourth count, it is the judgment of the Court that * * * Weber, * * * be confined * * * for the term and period of two (2) years in the U. S. Penitentiary at McNeil Island, Washington on the fourth count; and with respect to the second count * * * Weber is sentenced to serve a term of five (5) years in McNeil Island Penitentiary and the execution of sentence is suspended and said defendants including others placed upon probation for five (5) years to begin now, on the second count, which will mean for three (3) years after the termination of sentence * * *."

After serving the penitentiary term of two years (less good behavior allowance) he was released from prison and thereafter and on June 7, 1938, he was brought before the court for the violation of his probation and was recommitted to prison, the following being the order in part: "* * * the defendant, Max Weber, having under date of September 13th, 1934, been sentenced to the United States Penitentiary at McNeil Island for the term and period of five years on the second count, and said sentence having been suspended, and defendant having been granted probation on said second count for five years; and, under date of June 7th, 1938, after hearing on revocation of probation for violation of probation, the court having revoked the probation of Max Weber, and having ordered that said defendant Max Weber serve the five years' Penitentiary sentence on the second count;

"It Is by the Court Ordered and Adjudged that the defendant be hereby committed to the custody of the Attorney General for imprisonment in an institution of the Penitentiary type to be designated by the Attorney General or his authorized representative for five years on the second count; * * *."

Petitioner claims that the suspension of the sentence to the prison and the granting of probation on count two was and is entirely void, and that the sentence to five years in the penitentiary on this count became effective with its pronouncement and ran concurrently with the sentence on count four; that he has served his sentences under both counts and should be released from restraint.

To understand the issue it will be well to recall that power of the District Court to suspend sentences and to release a convicted person under probation, although long assumed by the U. S. District Courts, was held without basis in law by Ex Parte United States, 1916, 242 U.S. 27, 37 S.Ct. 72, 61 L.Ed. 129, L.R.A.1917E, 1178 Ann. Cas.1917B, 355.

There after a probationary system for U. S. Courts became law by the Act of March 4, 1925, c. 521, 43 Stat. 1259, 18 U.S.C.A. § 724.

In United States v. Murray (Cook v. United States), 275 U.S. 347, 48 S.Ct. 146, 149, 72 L.Ed. 309, the Supreme Court had this act before it in the consideration of two appeals which it covered in one opinion. In two instances U. S. District Courts had made orders granting probation to persons who had theretofore been sentenced to imprisonment and who had already begun to serve such sentence. In the case of Murray the U. S. Circuit Court had affirmed and in the case of Cook the U. S. Circuit Court had reversed.

Chief Justice Taft, writing for the court, analyzed the Probation Act and said that since the Act specifically limits the power to grant probation to a time after conviction or after a plea of guilty the question for decision was — "Before what time must it be granted?". In other words could it be granted after the person convicted had started to serve his sentence.

The Chief Justice reasoned that it would be unlikely that congress would grant authority to judges to change a sentence at any time during its running time as such a power would tend to cause complications with the executive clemency powers or with the Board of Parol; that it would unnecessarily add to the heavy burdens of District Judges. He referred to the fact that the practices of suspending sentences were perforce discontinued under the pronouncement in Ex Parte United States, supra and said: "The great desideratum in enacting such legislation was the giving to young and new violators of law a chance to reform and to escape the contaminating influence of association with hardened or veteran criminals in the beginning of the imprisonment". He holds: "The beginning of the service of the sentence in a criminal case ends the power of the court even in the same term to change it. Ex Parte Lange, 18 Wall. 163, 21 L.Ed. 872. Such a limit for probation is a natural one to achieve its end." Upon this reasoning the Supreme Court held void the grant of probation in each of the two cases under consideration.

Subsequent to the decision in this case which we shall hereinafter call the Murray case, supra the U. S. Court of Appeals for the Second Circuit had before it on appeal from the District Court, 14 F.Supp. 368, a case (United States v. Greenhaus, 85 F.2d 116, 107 A.L.R. 630) in which there had been a conviction on a number of counts of a single indictment charging fraud and conspiracy to defraud and one Greenhaus had been sentenced to the penitentiary upon all of the counts of which he had been found guilty and upon some of such counts, but not all, sentence was suspended and probation granted. The sentences not suspended ran concurrently for three years each, those suspended ran concurrently for five years each.

Upon serving the required time for the sentences not suspended Greenhaus was released from prison under direction to report to the probation officer under the probation orders. Thereafter his probation was revoked for cause and he was sentenced to the penitentiary upon the counts that the trial court had ordered suspended and he appealed. The Circuit Court of Appeals for the Second Circuit, upon authority of the Murray case held that the sentences of Greenhaus which provided that probation for five years on several counts should follow penitentiary confinement for three years on several others were inconsistent with the reasons advanced for the decision in the Murray case.

The Circuit Court considered the sentences for the purposes of the Probation Act on all of the counts as constituting a single term or sentence and held, in the circumstances, that the trial court did not have the power to suspend sentence pronounced and to grant probation on part of such counts while ordering him to the penitentiary upon others thereof. It therefore sustained the District Court's order committing Greenhaus to serve the sentence pronounced on the counts originally suspended....