Burns v. United States (59 F.2d 721, 1932)

WILBUR, Circuit Judge.

This appeal is taken by appellant from an order revoking a probationary order upon the suspended execution of a sentence of five years in the United States penitentiary at McNeil Island, state of Washington, and issuing a commitment in accordance with the original sentence.

The appellant pleaded guilty to three counts of an indictment and on May 4, 1931, was sentenced upon the first count' to imprisonment in the Los Angeles County jail ior a period of one year, and on the second count was fined $2,000, and to stand committed to the Los Angeles County jail until paid; on the third count was sentenced to five years imprisonment in McNeil Island penitentiary. The probationary order is as follows:

“ ‘Q. You think you during that time would stay out and have supper out very often? A. I had a little bite to eat. If it would be supper, it would be earlier than supper.

“ ‘Q. How did Lessner know when you wanted to leave the jail? Did you send word over there to him ? A. I want to explain that if I may, I could explain that in a minute. If, for instance he would take me out today, I would go to the dentist, I would ask the dentist would he be ready for me again, when he would be ready for me again. Well, if he would say, for instance, next Tuesday, then I would say to Mr. Lessner, “Well, the dentist can take me next Tuesday.” Then, if Mr. Lessner’s duties were such that he could take me out, he would do so. If not, I would have to stay there. Consequently, if was quite a jumbled up affair in keeping our affairs with the dentist.

“ 'Q. When you left the jail and didn’t go to the dentist’s office were you and Lessner riding around or were you at your house and would Lessner ride around, is that right? A. Yes.’

“On redirect examination the witness testified that when he was out .he asked to be taken home to get a change of clothes; that usually each time he went to the house he went for a change of linen; that by looking at the telephone book he could give the district attorney the name of the dentist.”

We have quoted at length from the testimony of appellant because it shows that appellant admitted that he had been frequently away from the jail in custody of a deputy United States marshal, that these visits were for his own convenience, and that they were not confined to trips to and from the dentist’s office. The judge evidently considered that this conduct justified the revocation of the probation, regardless of the exact terms of the order which counsel sought to produce, for the reason that, in any view of the matter, appellant’s conduct was not justified. The order of revocation was not based upon a technical escape, but upon the fact that the appellant had not acted in good faith in carrying out the order of the trial judge, but, on the contrary, had taken advantage of a general permit to carry out-his own-purposes quite independently of the basis and theory upon which the order was given.

We have thus far refrained from mentioning-another subject of inquiry'.before the court at the time of the proceedings looking toward the revocation of probation, for the reason that the order is not predicated from the evidence thus adduced. The effect of the evidence offered against appellant upon this subject was that he had attempted to influence a witness confined in the county jail to make a false statement in an affidavit for the purpose of defeating the prosecution in that ease, knowing that the statement was false. The appellant denied the testimony thus adduced, and, while appellant’s counsel desired to offer further testimony to rebut the evidence against him, we must assume that the court’s refusal to permit such testimony was predicated upon the belief that the matter was immaterial, in view of the conclusion he had reached on the question of the conduct of the appellant in absenting himself from the jail.

The appellant’s contention is that he is entitled to a hearing upon the charges against him as a constitutional right under the due •process of law clause of the Federal Constitution. The trial judge was of the opinion that the proceedings were summary. The statute upon which the court acted, 18 USCA § 725, 43 Stat. 1260, § 2, provides as follows: “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 revoke the probation or the suspension of sentence, and may impose any sentence which might originally have been imposed.”

There are two lines of decisions dealing with the power of the court to revoke probation. In one line of decisions it is held that the probationer is entitled to a hearing upon the charge against him, and that the order of probation can be only revoked upon cause thus shown. It is also held in all such eases that the cause must be either a violation of the law or of the terms of the order granting probation, or the instructions issued in pursuance thereof. Other decisions hold that the granting' of probation is an act of grace which may be summarily revoked at any time.

The Circuit Court of Appeals of the Second Circuit, speaking through Judge Mack, who has had a great deal of experience with probation matters, said: “The act itself has no express restrictions on the power to revoke the probation or to modify the terms, conditions, or time thereof. These are matters for the exercise of a sound judicial discretion. The remedy for an abuse of such discretion or for other irregularities or errors in the exercise of the jurisdiction is solely by appeal, not by writ of habeas corpus.” United States ex rel. Grossberg v. Mulligan, 48 F.(2d) 93, 94.

In Furrow v. United States, 46 F.(2d) 647, the Circuit Court of Appeals of the Second Circuit had under consideration a direct appeal from an order revoking probation. It appeared that the appellant in that ease had no written notice of the alleged infractions of the terms of probation, and that counsel, although aware of the nature of the charges, delayed making motion of continuance until the time set for hearing. The court concluded that the appellant had notice of the charge against him, was not taken by surprise, and had an opportunity to defend himself. Under these circumstances, the court stated that, as there was ample evidence to support the conclusion of the trial court, the order would be sustained.

It should he borne in mind in dealing with the question of probation and violation thereof, that the extending of probation to a person convicted of crime is purely a matter of grace, and that the revocation thereof is merely a withdrawal of the leniency so extended. The term of imprisonment which follows the revocation of probation is for the commission of the offense with which the probationer stands convicted, and is not in any sense a punishment for the violation of the terms of the probation. Congress, in giving the power of revocation, or, perhaps it should be said, in recognizing the inherent power of the court to revoke its order suspending the imposition or execution of a sentence, has attached no condition whatever to such revocation. Assuming, without deciding, that Congress had the power so to do, it has not in fact done so. People v. Court of Sessions, 141 N. Y. 288, 36 N. E. 386, 23 L. R. A. 856. Should the courts under such circumstances attach conditions and restrictions to the power of the trial judge? The whole theory of probation is that of giving to the convicted person an opportunity for reformation, and, when it is manifest that the probationer is not taking advantage of the opportunity given him, probation should he revoked, and the appropriate sentence for the crime theretofore committed should be imposed or executed. When that point has arrived in the history of the probationer where it is sufficiently manifest to the judge that the object of probation has failed, there is no reason why probation should not be revoked. In extending probation, the judge acts upon his knowledge of the character and situation of the convicted person and usually upon expressions of penitence and promises to reform, and is thus in a position to determine when those promises are without intention or power to perform.

The Circuit Court of Appeals of the Fourth Circuit in Riggs v. United States, 14 F.(2d) 5, 9, had occasion to consider the question of revocation of probation. The matter was presented by writ of habeas corpus and also by direct appeal. After stating the purposes of probation and the necessity of conferring great latitude on the District Judges in enforcing the same in order to accomplish the objects of probation the court said: “It is not necessary that we pass up- - on the defendant’s contention that he was entitled to a hearing upon the question of the breach of the terms of his probation, for it affirmatively appears of record that at the time of the revocation of the probation and imposition of sentence he was present in his own proper person, and the government made it appear by evidence satisfactory to the court that the conditions of the probation had been violated, and no exception appears to have been taken to such action of the court.”

District Judge Sibley in Campbell v. Ad-erhold (D. C.) 36 F.(2d) 366, 367, said: “Probation is wholly discretionary and of grace, and not at all a right. It is in no sense a bargain. If the judge becomes satisfied that the probation is a failure and the best interests of the public and the defendant are not being subserved, and that different treatment is required, he has the right and the duty to terminate the experiment and let the law lake its original course. * * * Unless the broad discretion to revoke be fully recognized, much greater caution will have to he exercised in extending this grace originally, and the bene- ■ fits of the act will become greatly restricted.”

It has been held by a number of state courts that probation may be revoked summarily without a hearing. People v. Dudley, 173 Mich. 389, 138 N. W. 1044; People v. Trombly, 173 App. Div. 497, 160 N. Y. S. 67; People v. Goodrich (Sup.) 149 N. Y. S. 406. It is unnecessary to decide in this ease whether probation can be revoked arbitrarily and without a hearing. In the case at bar, appellant knew that he was charged with being unlawfully and improperly ¡outside the prison to which he had been sentenced. He was represented by an attorney, evidence was adduced against him; and in his testimony he admitted the truth of the charge. Any evidence he sought to adduce on his behalf in that regard was by way of extenuation. The judge certainly was not required to hear this evidence, if, in his opinion, it was immaterial.

Order and sentence affirmed.