Kaplan v. Hecht, 24 F.2d 664 (2d Cir. 1928)

K. Henry Rosenberg, of New York City, for appellant.

Charles H. Tuttle, U. S. Atty., of New York City (Thomas J. Todarelli, Asst. U. S. Atty., of New York City, of counsel), for appellee.

Before MANTON, SWAN, and AUGUSTUS N. HAND, Circuit Judges.

SWAN, Circuit Judge (after stating the facts as above).

The legality of the order of June 7, 1926, granting Kaplan probation, is not questioned, nor could it be. As he had not begun to serve his sentence, the District Court had jurisdiction under the express terms of section 1 of the Probation Act of March 4, 1925 (18 USCA § 724), "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 [it] may deem best." See Kriebel v. United States, 10 F.(2d) 762 (C. C. A. 7); Evans v. District Judge, 12 F. (2d) 64 (C. C. A. 6); Ackerson v. United States, 15 F.(2d) 268 (C. C. A. 2); United States v. Murray, 48 S. Ct. 146, 72 L. Ed. ___, decided January 3, 1928. Section 1 further provides that the court may revoke or modify any condition of probation, or may change the period of probation, but such period, including any extension thereof, shall not exceed five years. Section 2 (18 USCA § 725) reads as follows:

"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.

*665 "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."

Appellant was convicted on April 18, 1924, and the maximum term of imprisonment which might have been imposed on him was two years. He now contends that, under section 2 above quoted, the maximum period for which he might have been sentenced expired on April 18, 1926, and that thereafter the court was without jurisdiction to revoke the probation and impose imprisonment by its sentence of November 2, 1927. This contention is not consonant with the natural meaning of section 2. The second paragraph of that section provides for the arrest of probationers either during the probation period or after its termination. In the first case, the arrest may be made either with or without a warrant and at any time; in the second, only upon a warrant and only within "the maximum period for which the defendant might originally have been sentenced." The precise meaning of this limitation need not be now determined, for appellant's case falls squarely within the first classification, as an arrest during the probation period, and the last sentence of the section expressly provides that the court may revoke the suspension of sentence and impose any sentence which might originally have been imposed.

The second contention is that the time during which appellant was on probation must be credited upon the execution of the sentence of imprisonment imposed on November 2, 1927. The argument runs that, although on probation, he was not a free man, but was undergoing punishment and restraint in execution of the judgment of conviction, so that any imprisonment after December 8, 1927, the expiration of 18 months from the date he was placed on probation, amounts to a second punishment for the same crime, in violation of the Fifth Amendment. The fallacy of this argument is made at once apparent upon a consideration of the purpose of the Probation Act. This is clearly explained in the recent opinion of the Supreme Court, cited above, where the Chief Justice points out that probation is the attempted saving of a man who has taken one wrong step, and whom the judge thinks can be set again upon the path of rectitude, if an opportunity for reform be given him before he is stigmatized with imprisonment and subjected to association with hardened convicts. Hence the judge is given the power to suspend sentence a thing he could not do without legislation, after the decision in 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 purpose is to avoid imprisonment so long as the guilty man gives promise of reform. Clearly, therefore, probation is not intended to be the equivalent of imprisonment. The aim of the statute is reformatory, not punitive, and its language carries this aim into effect. While we have found no decision under the federal Probation Act which passes upon the contention that the prior probation must be credited upon a sentence of imprisonment imposed when probation is revoked, numerous cases under similar state statutes have adjudicated its lack of merit. See King v. Commonwealth (1923) 246 Mass. 57, 140 N.E. 253; In re Hall (1927) 100 Vt. 197, 136 A. 24; Belden v. Hugo, 88 Conn. 500, 91 A. 369; State v. Everitt, 164 N. C. 399, 79 S.E. 274, 47 L. R. A. (N. S.) 848.

The order discharging the writ is affirmed.