Brief for the United States — Burns v. United States

No. 378

Inthe Supreme Court of the United States

OcToOBER TERM, 1932

JIMMIE BURNS, PETITIONER

Vv,

UNITED STATES OF AMERICA

ON WRIT OF CERTIORARI TO THE UNITED STATES CIRCUIT

COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES

Bee PEE HE IEF MERE

Page

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Argument:

I. The notice and bearing accorded the petitioner were

RENN as ot rn tana cae Sob eeieent cas, 11

II. The petitioner’s probation was revoked upon sufficient

COMMS oak ccs cect wee tilenweiwele cee 24

BRNO chennai on mes ao ee eek Rene Beak. 33

Appendix: Statute involved__...--.--..-------------------- 34

CITATIONS

Cases:

Archer v. Snook, 10 F. (2d) 567_-.------.--------- eee 26

Benton v. Sutton, 1 Bos. & Pul. 24._-__--..--------- 2 eee 32

Campbell v. Aderhold, 36 F. (2d) 366_-....-----_-- 13, 17, 18, 26

Colby v. Sampson, 5 Mass. 310__--.-------------------- 32

Commonwealth v. McGovern, 183 Mass. 238___..-..-_-- 15, 24, 26 |

Finer v. Commonwealth, 250 Mass. 493__....-.-.--.----- 15, 27 |

Puller v. Slate, 122 Ale.'82. 2. 2 os nn ee ee eee ee 15, 23 |

ener: v.:Tiwnt, 120 Me. 16. 2. 62 ccc ce cen nek etek. 32

Hobert’s Case, Cro. Car. 209. ___.----------------__---- 32

Hollandsworth v. United States, 34 F. (2d) 423___..._____- 20, 24

Jianole v. United States, 58 F. (2d) 115--.-_.------ 13, 17, 26, 33

Kaplan v. Hecht, 24 F. (2d) 664___.-----.-------._---_- 15

Kennedy’s Case, 135 Mass. 48___--_-------------------- 15, 23

Lucero, Ex Parte, 23 N. M. 483_....-------------------- 22, 24

Lyman, Ex Parte, 202 Fed. 303__......---------------.- 33

O’ Rourke, In re. 251 Fed. 268._._-.---------------.---- 31, 32

Owen v. Smith, 89 Nebr. 596_.-_.-.------------------_- 23

Patterson, In re, 94 Kan. 489__.__._--------------_-- 16, 22, 26

People ex rel. Woodin v. Ottaway, 247 N. Y. 493_______-.- 16, 23

People v. Dudley, 173 Mich. 389__....---------..------- 22

People v. Goodrich, 149 N. Y. Supp. 406____-__.___---__- 22

People v. O’ Donnell, 37 Cal. App. 192_.-.------.---.---- 22, 23

People v. Sanders, 64 Cal. App. 1_---------------------- 23

People v. Sapienzo, 60 Cal. App. 626...--.....--.. -2- 16, 22, 23

146420—32——-1 (1)

— ULE OREN REE RT ES

RSS MeN A EERE FERS IMLS NSCS, FU IEE LR AS

II

Cases—Continued. Page

People v. Trombly, 173 App. Div. 497--.-.-------------- 22, 26

Plunkett v. Miller, 161 Ga. 466_..........-------------- 22

Reeves v. United States, 35 F. (2d) 323.....--.-.---------- 13

Richardson v. Commonwealth, 131 Va. 802- - .~----.------ 15-26

Rigg, In re, 95 N. J. Eq. 341.....---------------------- 32

Riggs v. United States, 14 F. (2d) 5, certiorari denied, 273

2 | err 13, 21, 25

Riley v. United States, 16 Conn. 47- ~~ ~.-~--------------- 32

Shores, Ex Parte, 195 Fed. 627 - - .....------------------ 31, 32

State v. Chandler, 158 Minn. 447... ..--.--------------- 22

State v. Hardin. 183 N. C. 815. ...-..------- ------------ 24

State v. Miller, 122 8. C. 468_.....-.-.------------------ 22, 24

State v. O’ Neal, 147 Wash. 169_.......-. - an a aD 22

State v. Phillips, 185 N. C. 614... .. ....-------------- 24

State v. Stair, 48 N. D. 472. .....---------------------- 22, 24

State v. Sullivan, 127 8. C. 186_......------------------ 22

State v. Zolantakis, 70 Utah 296 .-..-.---.-.------------- 21, 25

Steere v. Field, Fed. Cas. No. 13350- ~~... ....----------- 32

Sylvester v. State, 65 N. H. 193_.......----------------- 23

United States v. Bishop, 47 F. (2d) 95------------------- 33

United States v. Hoffman, 13 F. (2d) 269, affirmed, 13 F. (2d)

GD... v dianeccudccneseosetecnesacccccesesconsores .. 31,32

United States v. Mulligan, 48 F. (2d) 93-------------- 17, 26, 27

United States v. Murray, 275 U. 8. 347... .. .- .--------- 12,16

Weber v. State, 58 Oh. St. 616__-...-..--.--------------- 24

Whitaker v. Commonwealth, 188 Ky. 95--.-------- -- ------ 32

Wiggins v. State, 194 Ind. 118__.----..------------------ 32

Williams v. State, 162 Ga. 327- ~~~ --- -- exgiadeapeiadebant 22, 24

Zimmerman v. United States, 1 F. (2d) 712_....---------- 32

Statute:

Probation Act of March 4, 1925, c. 521, 43 Stat. 1259

(U. S. C., Title 18, Sec. 724-727)—

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et. Bd cncinenternnchsehtassaseesnneobtneonee 35

Miscellaneous:

House Report No. 423, 68th Cong., Ist Sess_... ..-------- 14, 16

Hearings of February 21, 1924, before subcommittee of the

Senate Judiciary Committee on S. 1042 and 8. 1729,

68th Cong., Ist Sess_-.-.-.-.-...----------------------- 14

Inthe Supreme Gourt of the United States

Octoser Term, 1932

No. 378

JIMMIE BURNS, PETITIONER

v.

Untrep States OF AMERICA

ON WRIT OF CERTIORARI TO THE UNITED STATES CIRCUIT

COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES

OPINIONS BELOW

No opinion was rendered by the District Court.

The opinion of the Cireuit Court of Appeals

(R. 73-90) is reported in 59 F. (2d) 721.

JURISDICTION

The judgment of the Circuit Court of Appeals

was entered June 20, 1932. (R. 90-91.) The pe-

tition for certiorari was filed September 19, 1932,

and was granted October 17, 1932. (R. 93.) The

jurisdiction of this Court is invoked under Section

240 (a) of the Judicial Code, as amended by the

Act of February 13, 1925.

(1)

— = a eS ee a i ta

—

1. Whether under the Federal Probation Act

probation may be lawfully revoked only upon a pre-

liminary notice to the probationer and a judicial

trial of the specifie charges upon which revocation

is sought, and, if so, whether the petitioner was

given adequate notice and hearing.

2. Whether probation may be revoked only upon

a violation of a condition of the order of probation,

and, if so, whether the evidence establishes that the

petitioner violated a condition of his probation.

STATUTE INVOLVED

The Federal Probation Act is set forth in the

Appendix, infra, pp. 34-36.

STATEMENT

The petitioner pleaded guilty (R. 17) to all three

counts of a criminal indictment filed in the District

Court for the Southern District of California (R.

3-8). He was sentenced on the first count to im-

prisonment for one year in the Los Angeles County

jail, and on the second count to pay a fine of $2,000.

On the third count he was sentenced to imprison-

ment for five years in the penitentiary, but the

judgment provided that (R. 9-10)—

execution of said sentence of imprisonment

on the third count is suspended during such

time as the defendant reports regularly every

three months in writing, beginning with this

date, to the Federal Probation Officer of this

eonrt. during which time he entirely refrains

3

sentenced. Probation is granted for a

period of five years.

The judgment was entered May 4, 1931, and pe-

titioner was on that day committed to the Los

Angeles County jail to serve the one-year sentence.

(R. 8, 12.) On January 21, 1932, he was brought

before the court for a hearing on the question

whether his probation on the third count should be

revoked. The court ordered an hour’s recess to

enable petitioner to procure the services of an at-

torney. The hearing being resumed, counsel for

petitioner stated that he did not know what the

issues involved were and requested a continuance

in order that he might have an opportunity to “‘in-

quire into the situation.”’ (R. 19-21.) The re-

quest was denied, the court saying in part (R.

21-22):

The newspapers for several days have been

full of accounts reflecting, in a most serious

—

4

is whether he has violated the terms of his

probation. The matter was brought to the

attention of the Court by the United States

attorney’s office, whereupon the Court or-

dered that the defendant be brought before

the court. We are here now to investigate.

I don’t feel that it is a matter in the nature

of a trial, and, inasmuch as the matter has

been brewing for several days, and the de-

fendant himself might have anticipated such

a proceeding, I see no harm in going ahead

with the proceedings necessary to determine

the question before the Court.

No exception was taken to this ruling of the

court.

The Government called three witnesses. A. P.

Rumburg, a special agent of the Bureau of Prohi-

bition, testified that, having received information

that petitioner was permitted to leave the county

jail for a full day at a time, he had caused an in-

vestigation to be made of the jail records to ascer-

tain the dates and length of petitioner’s absences

from the jail. A copy of the jail record thereupon

produced by the witness was admitted in evidence

as an exhibit. (R. 23-24.) It showed that on fif-

teen days between May 10 and August 18, 1931, in-

clusive, petitioner was absent from the jail for pe-

riods ranging from three hours and fifty-eight min-

utes to twelve hours and thirty-six minutes; that

during these absences he was in the custody of

one ‘‘Lessner,’’ or one ‘‘Jones’’ (Deputy United

States Marshals), and that the absences were au-

r+)

EER FE RIES ETI. ELL LIL INGE ORT, METAS Pe Eg RS, IL DLO IE ELLA O TE

5

thorized by Judge James, a United States District

Judge. (R. 24.) The witness further testified on

direct and cross-examination that at his request one

of the agents had talked to J udge James and had

ascertained that the latter had in May granted au-

thority for taking petitioner to the dentist ; that the

witness had interviewed Lessner, who exhibited to

him an order authorizing petitioner to be taken to

the dentist; that the order was a general one, but

the witness could not say whether it was limited to

a single visit or was for general treatment (R.

27-28) ; that on August 18, 1931, at 5.45 o’clock

p. m., the witness telephoned petitioner’s home and

asked for Lessner ; that petitioner answered the call

and said that Lessner was there but was in the bath-

room and could not come to the telephone ; that the

witness, accompanied by another agent, thereupon

proceeded to petitioner’s home, where they arrived

at 6 o’clock p. m. and were admitted by petitioner,

who was ‘‘without a coat or hat and had on bed-

room slippers”’ ; that petitioner told the agents that

Lessner was in the bathroom and would be out

shortly ; that in about ten minutes Lessner entered,

apparently through a back door, with his hat and

coat on, bringing ‘‘a couple of packages of ciga-

rettes’’ (R. 25-26, 29-30); that the agents were

there until 6.20 o’clock p. m. (R. 25) and left before

petitioner and Lessner (R. 28).

After cross-examination of the witness had pro-

ceeded at some length it was interrupted by the

trial judge, who personally conducted an examina-

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—

6

tion of the witness. At the conclusion thereof the

judge refused to permit further cross-examination,

saying, ‘‘We are not conducting a trial.’”’ An ex-

ception to this action of the court was noted.

(R. 30.)

R. 8. Zimmerman, clerk of the court, testified

that in the usual course of procedure the granting

of authority for the release of a prisoner from the

county jail would be noted on his records, but that

his records failed to disclose that any such author-

ity had been granted as to petitioner." (R. 30-31.)

Taking the stand in his own behalf, petitioner,

upon cross-examination, gave the following testi-

mony (R. 4445, 47-48) :

Q. By Mr. Repwine. Now, the record

shows on May 30th—you left the jail on May

30th, at 10 o’clock A. M. and did not return

until 9.06 P. M. You were not in his office

all of that time?

A. No, sir; I don’t remember the incident,

but I don’t suppose I was.

Q. What did you do?

A. Well, I might have had something to

eat.

Q. What else did you do?

A. That is all.

* Considerable testimony also appears in the record with

reference to the alleged obtaining by petitioner from a fel-

low prisoner of a false statement contradicting a prior

statement that the latter had given in connection with a

certain kidnapping case (R. 32-40), but as this testimony

was not made the basis for revoking probation it is not

here discussed (R. 49).

7

Q. Well, what were you doing until 9.06

P. M. in the evening ?

A. Well, listening to the radio ; something

like that.

Q. Where were you listening to the radio?

A. At my home.

Q. How many times did you go to your

home when you were really supposed to be

going to the dentist ?

A. Well, I really couldn’t tell you; just

quite a few times.

Q. Most of the time?

A. Pretty near.

* * * * *

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 petitioner stated that

when he was out of the jail 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.”” (R. 48.)

At the conclusion of petitioner’s testimony his

counsel requested an opportunity to present fur-

ther evidence. The request was denied, the court

Saying, ‘‘I am not prepared to have a hearing of

this case that will run into the proportions of a

criminal trial.’’ (R. 48-49.) In rendering its de-

146420—32—__9

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cision, to which an exception was taken, the court

stated, in part (R. 49):

Now, gentlemen, there is enough obviously

before this court to show that the spirit of

the probation was not in any sense complied

with. The idea that one person sentenced to

the county jail should over a period of 3

months, a little bit more than 3 months, be

taken out for on 15 different occasions from

10 o’clock in the morning until 9 o’clock at

night, oftentimes, that of itself is something

that should bring the blush of shame to any-

body eatrusted with the execution of the law.

Upon appeaéthe order of the District Court was

affirmed. (R. 90-91.) This Court granted a writ

of certiorari. (R. 93.)

SUMMARY OF ARGUMENT

I

The notice and hearing accorded the petitioner

were adequate. Both the language of the Federal

Probation Act and its legislative history disclose the

intent of Congress that the granting and revocation

of probation should rest in the discretion of the

District Judge, and the Federal courts have uni-

formly held that wide latitude must be permitted in

the administration of the Act. The District Judge

is expressly given the power, without limitation, to

revoke or modify any condition of probation and

to revoke the prebation itself. The statute does not

expressly require any notice to be given the proba-

tioner or any hearing upon the charges upon which

=

9

revocation is sought. The absence of limitations

upon the court’s power to revoke probation and the

failure to prescribe any procedure to be followed

indicate that the court may determine for itself the

method by which it ascertains the relevant facts and

arrives at its conclusions.

Probation is not a contract, giving rise to vested

rights, but a matter of grace. The privilege is ex-

tended only when the District Judge is satisfied

‘‘ that the ends of justice and the best interests of

the public”’ will be served. When it becomes mani-

fest to the District J udge, by any form of proceed-

ing which enables him fairly to determine whether

or not the object of the probation has failed, the

probation may be revoked.

If anything, the petitioner was accorded greater,

rather than less, consideration than would have

been necessary under the statute. While the ad-

vance notice given him of the proposed revocation

of his probation was short, he was permitted to

engage counsel who represented him at the hear-

ing, to cross-examine the Government witnesses to

a certain extent, and to testify in his own behalf.

Although he was not furnished with a written

specification, it is clear that he knew he was charged

with being improperly outside the prison to which

he had been sentenced, and his own testimony es-

tablished the truth of this charge. Accordingly, it

Was not an abuse of discretion for the District

Judge to refuse to allow the petitioner to introduce

s * 5 LPR ae OY EE

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10

further evidence since he had himself admitted

repeated absences from the jail.

II

The petitioner’s probation was revoked upon

sufficient cause. The statute does not impliedly

contemplate, as petitioner asserts, that probation

may be revoked only upon a violation by the pro-

bationer of some condition of the probation. Such

a limitation is not expressed in the statute, and it

may not be implied in view of the District Judge’s

power to revoke after the period of probation, and

therefore at a time when the conditions of the pro-

bation are no longer in effect. Probation, being

granted only when the District Judge is satisfied

that the ends of justice and the best interests of the

publie will be served, may be revoked whenever it

appears to his satisfaction that the purpose of the

privilege has failed.

Moreover, the petitioner violated the conditions

of his probation, which were that he refrain ‘‘from

any violation of law’’ and conduct himself ‘‘as a

law abiding citizen.’’ The requirement that he

should conduct himself ‘‘as a law abiding citizen”’

was essentially one of good conduct. That the peti-

tioner failed to meet this requirement is manifest

from his flagrant abuse of the privilege granted

him of being taken to the dentist for treatment.

Even if the conditions of the order of probation

be interpreted as referring only to violations of law,

MEER EU RR LAT RAEI MOT eA Mh I him ae Mae ey! nee Ie

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there was a breach of the conditions. By conniving

with his custodians to abuse the limited privilege

conferred upon him, the petitioner, if not guilty of

a contempt of court for flouting the mandate of

commitment, was guilty of a conspiracy to commit

a contempt of court, Moreover, by taking a greater

liberty than that to which he was entitled under the

order, he was, if not guilty of an escape, guilty of

conspiring with his custodians to commit a viola-

tion of Section 138 of the Criminal Code, which

covers the offense of permitting prisoners to escape.

ARGUMENT

I

THE NOTICE AND HEARING ACCORDED THE PETITIONER

WERE ADEQUATE

The petitioner, assimilating the revocation of

probation to a criminal trial, contends that proba-

tion may not be revoked without a “‘judicial hear-

ing’’ in accordance with “established rules of judi-

cial procedure.’’*? He defines the requisite hear-

ing as including (Pet, 8)—

* The petitioner’s right to a notice of the charges upon

which revocation of his probation was sought and a period

in which to prepare his defense was originally raised by a

motion for a continuance. (R. 20-21.) This motion was

denied, but no exception was taken to the action of the

court. (R. 22.) While this Court may disregard the lack

of an exception in a criminal case where manifest injustice

would result, this is not such a case, The petitioner by his

own statements is guilty of a flagrant abuse of the limited

privilege extended to him as a prisoner,

= -_ fe WROD. ten %

POMPE AAR SE METIE MMS UC TTONCY FE PN KIO AI my PE ERENT? ME CEN Aa

—

12

notice of the specific charge, a reasonable

opportunity to prepare his defense, a rea-

sonable opportunity of cross-examination,

and a reasonable opportunity to call wit-

nesses in his own behalf.

The Government contends that no set or standard-

ized procedure is required for the revocation of

probation; that, at least so long as the District

Judge does not act arbitrarily, probation may be

revoked summarily and without the formal requi-

sites of a trial; and that the notice and hearing

given the petitioner were adequate.

The power of the Federal courts with respect to

the granting and revocation of probation exists

only as granted by the Federal Probation Act. See

United States v. Murray, 275 U. 8S. 347, 354. See-

tion 1 of that Act (p. 34, infra) provides that the

eourts of the United States having original juris-

diction of a criminal action shall have the power—

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,

* * * to suspend the imposition or exe-

cution of sentence and to place the defend-

ant upon probation for such period and upon

such terms and conditions as they may deem

best; * * *, (Italics ours.)

Section 1 provides further that—

The court may revoke or modify any condi-

tion of probation, or may change the period

of probation.

APPEAL PRIN SHO PSS AN TI RTO BIO Fd FT DPR PANNE SOREN T IRR SLE UPR th 9° OUI wri CN aE eR co pity sen we Ym wrRNtHsE

13

Section 2 provides that the probation officer,

when directed by the court, shall report to the court

as to the conduct of the probationer, whereupon the

court may take such action ‘‘as shall seem advis-

able.’’ Section 2 further provides that—

At any time within the probation period

the probation officer may arrest the proba-

tioner 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 origi-

nally 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 proba-

tion or the suspension of sentence, and may

impose any sentence which might originally

have been imposed.

The language of the statute and its legislative

history clearly disclose the intent of Congress that

the granting and revocation of probation should

rest within the discretion of the trial] judge, and

the Federal courts have uniformly held that wide

latitude must necessarily be permitted to the trial

Judge in the administration of the statute. Riggs

v. United States, 14 F. (2d) 5, 9 (C. C. A. 4th),

certiorari denied, 273 U. 8, 719; Jianole v. United

States, 58 F. (2d) 115 (C. ©. A. 8th); Reeves v.

United States, 35 F. (2d) 323, 325 (C. C. A. 8th) ;

Campbell v. Aderhold, 36 F. (2d) 366, 367 (N. D.

ambit PN apy si Ra

— MLTR NNT GT NN TN IL TENE! SERN MN OSE ME TERE NE TE

14

Ga.). See House Rept. No. 423, 68th Cong., 1st

Sess. ; Hearings of February 21, 1924, before a sub-

committee of the Senate Judiciary Committee on

S. 1042 and S. 1729, 68th Cong., Ist Sess., pp. 19,

22, 23.

The statute places no conditions or limitations

upon the power of the District Judge to revoke

probation except as to the time within which he

must act. It does not expressly require any pre-

liminary notice to the probationer, either written

or oral, of the charges upon which revocation of

probation is sought, nor does it expressly provide

for any hearing, formal or otherwise, upon such

charges. On the contrary, Section 2 provides that

upon the arrest of the probationer he shall forth-

with be taken before the court, and that thereupon

the court may revoke the probation. When Sec-

tion 2, requiring that the probationer be summarily

arrested and brought before the court, is read with

the provision of Section 1 that ‘‘The court may re-

voke or modify any condition of probation,”’ it

seems clear that notice is not required and that if

any be given, the character of the notice and the

nature of the hearing are matters within the sound

discretion of the District Judge. The lack of any

limitation upon the power to revoke probation and

the failure to define any procedure to be followed

disclose the statutory purpose that the trial court

shall upon such inquiry as it deems adequate pro-

ceed in such manner as it deems proper to revoke

the probation.

_—

This conclusion is consistent with the theory and

the purpose of the statute. Probation is not a

vested right but is a matter of grace, and the revo-

cation thereof is merely a withdrawal of the privi-

lege extended at the time the defendant is arraigned

for sentence. When the imposition or the execu-

tion of a sentence is suspended, the sentence is

not vacated nor is the judgment impaired. The

convicted person is not freed from the legal conse-

quences of his guilt, but is merely enjoying a condi-

tional favor, contingently postponing his punish-

ment, which may be withdrawn. When he is

brought before the court upon the charge that he

has violated his probation, he is not charged with

a new crime, for which he is subject to a new pun-

ishment, and accordingly the revocation of proba-

tion is in no sense a trial. It is a proceeding with

respect to the sentence and in the absence of express

provisions should be subject to no procedural limi-

tation which would not apply when sentence is

imposed. The imprisonment which follows the

revocation of probation is not punishment for viola-

tion of the probation, but for the commission of the

offense of which the probationer stands convicted.

See Kaplan v. Hecht, 24 F. (2d) 664, 665 (C. C. A.

2d) ; Kennedy’s Case, 135 Mass. 48, 52; Common-

wealth v. McGovern, 183 Mass. 238, 240; Finer vy.

Commonwealth, 250 Mass. 493, 496; Richardson v.

Commonwealth, 131 Va. 802, 810; Fuller vy. State,

146420—_32——_-3

15

—_ SOE IOS NE A EEL E RII eS, REE NE

ea ee ee .

—

16

122 Ala. 32, 38-39; In re Patterson, 94 Kan. 439,

442; People v. Sapienzo, 60 Cal. App. 626.

The theory of probation is that by suspending

the sentence or its execution the convict is given an

opportunity for reformation if the court is satisfied

“‘that the ends of justice and the best interests of

the public, as well as the defendant, will be sub-

served thereby.’ See United States v. Murray, 275

U. 8S. 347. In granting probation the judge acts

upon his knowledge of the character and situation

of the convict, and often upon expressions of peni-

tence and promises to reform. No formal hearing

is then necessary and the defendant may not call

or examine witnesses. The court may make such

inquiries and be guided by any information dehors

the record it considers pertinent. There is nothing

in the statute requiring any different procedure

when probation is revoked. People ex rel. Woodin

© v. Ottaway, 247 N. Y. 493, 497.

Without an extended hearing the judge should

determine summarily and at any time whether the

probationer continues worthy of the privilege ex-

tended. Knowledge by the convict that the favor

he enjoys may be withdrawn by the court at any

time imposes a moral restraint which must be exer-

cised if the interest of the public is to be served as

the statute contemplates. The force and virtue of

the plan lies in the power reserved to speedily re-

voke the privilege and inflict the penalty imposed

by law. (See House Rept. No. 423, 68th Cong., Ist

Sess., p. 2.) If this power is hedged about with

satiee) alias PS RP RTRE ON RNS th ~S

17

procedural restrictions which delay its exercise

while lawyers contend in court and appeals delay

the execution of sentence, the purpose of the statute

is defeated. Accordingly, the trial courts must

necessarily have a large discretion not only in ex-

tending probation, but in its revocation. Unless

courts are given broad power in the matter of revo-

eation, greater caution will be exercised in extend-

ing probation, with the result that the benefits of

the statute will be greatly restricted. See Camp-

bell v. Aderhold, 36 F. (2d) 366, 367 (N. D. Ga.),

supra.

Except possibly for certain dicta of one Cireuit

Court of Appeals, these conclusions are supported

by the decisions of the Federal courts. In United

States v. Mulligan, 48 F. (2d) 93 (C. C. A. 2d) the

court, construing the Federal Probation Act, said

(p. 94):

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.

In Jianole v. United States, 58 F. (2d) 115

(C. C. A. 8th), it was contended that probation

could not be revoked without the filing of a verified

information stating specifically the grounds upon

which revoéation was sought. It appears that when

the probationer was brought before the trial court

she raised the objection that she had not received

sufficient notice of the charges against her to enable

her properly to answer them, The court thereupon

— a STAN RIALS NEN GET SECS II

me : ‘

mg

18

refired the probation officer to state the time and

place of the alleged violations of probation, where-

upon Government witnesses testified as to these

transactions. At the close of the Government’s

evidence the probationer was given a continuance

in which to secure evidence in opposition, which was

thereafter submitted. In holding that no error had

been committed by the District Judge, the court

said (p. 117):

The statute provides no formalities for the

revocation of probation. On the contrary,

the very language of the act discloses the

purpose of Congress that the courts should

deal with the subject, not arbitrarily, but

promptly and summarily. * * * Every-

thing points to the purpose of the Congress

to lodge a very broad discretion in the trial

judge in the granting and revoking of pro-

bation. To require formal proceedings

would be subversive of the very purpose of

the act. (Italics ours.)

In Campbell v. Aderhold, 36 F. (2d) 366 (N. D.

Ga.), supra, the contention was made that, proba-

tion could not be revoked for conduct alleged to be

a crime until conviction for it. In denying this

contention the court said (p. 367) :

Probation is wholly discretionary and of

grace, and not at all a right. It is in no

sense a bargain. If the judge becomes sat-

isfied that the probation is a failure and the

best interests of the public and the defend-

ant are not being subserved, and that differ-

Pe HeE yn Sica PAP SIET RNC DEAT INS RE BT “EG ERNE

19

ent treatment is required, he has the right

and the duty to terminate the experiment

and let the law take its original course.

If probation is an act of grace which may be re-

voked summarily, though not arbitrarily, by the

District J udge, the probationer’s contention that

he should have been accorded a hearing substan-

tially in the nature of a criminal trial is clearly

unfounded.

But even if the statute be interpreted to require

some notice and hearing, we submit that the pro-

cedure followed in the case at bar met all the re-

quirements of the statute. While the advance no-

tice of the proposed revocation was short, the hear-

ing was postponed long enough for the petitioner

to engage counsel to represent him at the hearing.

He was permitted to cross-examine the Govern-

ment witnesses to a certain extent, and in addition

testified in his own behalf. W hile he was not fur-

nished with a written specification of the precise

charge against him, it is clear that he knew he was

charged with being improperly outside of the

prison to which he had been sentenced, and in his

own testimony he admitted the truth of this charge.

(R. 44-45.) Under these circumstances it was

not an abuse of discretion for the Distriet J udge

to refuse to allow the petitioner to introduce fur-

ther evidence. Having admitted the truth of the

charge upon which probation was revoked, the

petitioner could not have been prejudiced by the

20

failure to advise him formally of the charge or by

the failure to permit him to introduce evidence.’

The petitioner relies upon Hollandsworth v.

United States, 34 F. (2d) 423 (C. C. A. 4th). The

only question there involved. so far as the instant

case is concerned, was whether the failvre by the

District Judge to include in the written order of

probation the oral conditions upon which he

granted probation nullified the probation, and,

therefore, prevented revocation thereof. The

court, sustaining the revocation of probation, said

(p. 428) :

It follows that, whenever it is charged that a

probationer has failed to follow the instruc-

tions of the court, he may not be sentenced

until he has been given notice of the specific

charge and an opportunity to be heard in

his defense, and until the court, upon hear-

* Petitioner asserts that the evidence which he was not

allowed to introduce would have established (Pet. Br. 8) :

“* * * considerable time spent on each occasion at the

dentist’s office; that the deputy marshals had numerous

official papers te serve daily and did serve and discharge

their official duties in transit to and from the dentist's

office, and that at all times and in all respects the petitioner

was under the direction of the said United States Marshals

and did not act as a free-will agent during his absences

from jail.”

None of this evidence, part of which is inconsistent with

petitioner’s own testimony, would have contradicted the

truth of the charge that he was “riging around” and im-

properly enjoying the comforts of his home when he should

have been in jail or at the dentist’s office

RA: MEET OE tar Torey, UN MS NR ORANGE RE URES ONE TS ROI Hic

ea |

ing, shall have judicially determined that his

conduct during the probation period has not

conformed to the course outlined in the order

of probation.

Although this statement is dictum, since there were

no questions in the case as to notice or hearing and

the sentence imposed upon revocation of probation

was affirmed, it is not inconsistent with the decision

in the case at bar. For reasons stated, the peti-

tioner was accorded an adequate notice and a

sufficient opportunity to be heard.‘

The State decisions dealing with the revocation

of probation are not wholly in accord. While

many apparent inconsistencies are explained by

variations in the applicable statutes, there is at

least one case which holds, under a statute fairly

comparable to the Federal statute, and under facts

somewhat similar to those in the instant case, tiat

the probationer, although not entitled to a trial

by jury, 1s entitled to a judicial hearing otherwise

in the nature of a criminal trial. State v. Z olan-

‘In Riggs v. United States, 14 F (2d.) 5 (C. C. A. 4th),

the court said (p. 9):

“It is not necessary that we pass upon the defendant’s

contention that he was atitled to a hearing upon the ques-

tion 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.

uneeses FONE RE SORENTO ES

—— TEENIE LIE GREAT RIO PCY TEAR BENS Di ERA

tor "

22

takis, 70 Utah, 296.° This decision appears to be

in conflict with the great weight of authority, which

holds that probation, being a matter of grace and

not a vested right, may be revoked summarily

without a formal trial, that the matter of procedure

is one which rests in the discretion of the court,

and that neither notice to the probationer nor a

trial of the issues of fact is required if under all the

circumstances of the particular case the judge has

not acted arbitrarily.” People v. Dudley, 173 Mich.

389, 395; State v. Sullivan, 127 8. C. 186; State v,

Miller, 122 S. C. 468, 473-475; People ex rel.

Woodin v. Ottaway, 247 N. Y. 493, 497, supra;

People v. Trombly, 173 App. Div. 497; People v.

Goodrich, 149 N. Y. Supp. 406; People v. O’Don-

nell, 37 Cal. App. 192; People v. Sapienzo, 60 Cal.

°It has been held under statutes not altogether like the

Federal statute that probation may not be revoked with-

out the probationer having been arrested and brought be-

fore the court as required by the statute, and without notice

or hearing of any kind. Plunkett v. Miller, 161 Ga. 466;

State v. O’Neal, 147 Wash. 169. The same conclusion has

Seen reached where no statute was involved. Ea Parte

-,ucero, 23 N. M. 433. Such cases are clearly inapplicable

te the case at bar.

®Of course no hearing is required where the statute ex-

pressly provides for revocation of probation without notice.

State v. Chandler, 158 Minn., 447; /n re Patterson, 94 Kan.

439. Cf. State v. Stair, 48 N. D. 472, 476, which involved

a statute providing for termination of probation only

“after a full investigation and personal hearing,” and

Williams v. State, 162 Ga. 327, 334-335, where the court

discussed a statute which permitted revocation only after

“ due examination.”

EE ITEP IE EER CTT PY IE BOO RRO TIE ETI BE POISE VIPER NY Ni LET NIT. I

23

App. 626; People v. Sanders, 64 Cal. App. 1." See

also Owen v. Smith, 89 Nebr. 596 ; Kennedy’s Case,

135 Mass. 48, 54; Fuller vy. State, 122 Ala. 32, 40.

Cf. Sylvester v. State, 65 N. H. 193.

Of the State decisions those of New York and

Massachusetts are of chief importance in the ease

at bar. The Federal Probation Act was based

largely upon the New York and Massachusetts pro-

bation statutes (House Rept. No. 423, 68th Cong.,

Ist Sess., p. 4), and, under well-established princi-

ples Congress must be deemed to have adopted the

construction placed upon the New York and Massa-

chusetts statutes by the courts of those States.

In construing the New York statutes, the New

York Court of Appeals in People ex rel. Woodin vy.

Ottaway, supra, said:

The power to stay execution, like the power

to revoke the stay, or to place a defendant on

probation, is confided to the court of original

jurisdiction, which may be controlled in the

exercise of its discretion by information

dehors the record.

Thus, the revocation of the stay of execution was

regarded as requiring no different procedure than

that which is followed when sentence is imposed,

"Under the California statute (Penal Code, Sec. 1203),

which is closely similar to the Federal statute, it is not

necessary that the probationer be notified of the motion to

revoke his probation, and probation may be revoked even

if he is absent from the court at the time. People vy.

O'Donnell, 37 Cal. App. 192, supra; People v. Sapienzo,

60 Cal. App. 626, supra.

. — teed 85 + RIM

— PON ICL Y MELLO NL OE EI LEAD, SPUN TN REY

—

24

and it was recognized that the discretion to revoke

might be influenced by information entirely outside

the record, and was therefore not subject to

review.

In Massachusetts the power to revoke probation

is discretionary and is imposed in the trial court.

Commonwealth v. McGovern, 183 Mass. 238.

II

THE PETITIONER'S PROBATION WAS REVOKED UPON

SUFFICIENT CAUSE

The petitioner contends that his probation could

be revoked only upon a showing that he had violated

a condition of his probation ; that to show a violation

of his probation it was necessary to establish that

he had violated a law; that the evidence does not

establish that he had violated any law; and that

therefore his probation was unlawfully revoked.

The Government disputes the three premises upon

which this conclusion rests.

In Hollandsworth v. United States, 34 F. (2d)

423 (C. C. A. 4th), supra, relied upon by the peti-

tioner, the court said (p. 428):

The power of the court to revoke a proba-

tion and sentence the probationer may not be

exercised unless it is made to appear that

he has failed to comply with the terms and

conditions prescribed for him.

This statement was based upon the provision in

Section 4 of the Federal Probation Act (p. 35,

infra) which requires the probation officer to fur-

25

nish to each person released on probation ‘‘a written

statement of the conditions of probation” and to

“instruct him regarding the same.” See also the

concurring opinion in Riggs v. United States, 14 F.

(2d) 5, 10, supra; State v. Z olantakis, 70 Utah, 296,

303, supra.' .

The statement of the court in the Hollands-

worth case finds some slight support in Section

4, but consideration of the statute as a whole

in our belief, shows it to be erroneous. As pre-

viously stated, the statute places no express limita-

tions upon the power of the District Judge to revoke

probation. Nor is it expressly provided that pro-

bation may be revoked only upon the violation of a

condition of the probation. The power given the

District Judge under Section 1 at any time to re-

voke or modify any condition of probation or to

change the period of probation shows that it was

not the purpose of Congress to confer a vested right

upon probationers to remain on probation under

the terms and conditions originally prescribed,

and seems to negative the claim that revocation

is possible only if a condition has been vio-

nn Cae ee

‘Various State decisions construing statutes which are

not wholly comparable to the Federal statute have enun-

ciated somewhat similar rulings. See State v, Stair, 48

N. D. 472, 476; Williams vy. State, 162 Ga. 827; State y.

Miller, 122 §, ©. 4168, 475. Similar statements have been

made with respect to the court’s power at common law to

revoke a suspended sentence. State y, Phillips, 185 N. C.

614; State y, Hardin, 183 N. C. 815; He Parte Lucero, 23

N. M. 433; Weber y. State, 58 Oh. St. 616, 619.

P . Bee tg te =) “ i Sin Se ey * we

it ME he Dt Shee ae ee

—

26

lated. Moreover, the authority conferred upon the

District Judge by Section 2 (infra, p. 35) to re-

voke probation after the period of probation, and

therefore at a time when the conditions of the pro-

bation are no longer in effect, is not consistent with

the view that revocation may be ordered only for a

violation of such conditions. The statute thus ap-

pears to contemplate that the whole matter of the

revocation, as well as the granting, of probation

should rest, as does the question of sentence, in the

sound discretion of the District Judge. (See pp.

45-22, supra.)

It is only vy viewing probation as a contract,

giving rise to legal rights which the convict may

enforce against the court which granted the proba-

tion, that the statute may be interpreted as making

revocation dependent upon a violation of some

condition of the probation. Obviously probation

is not a contract or bargain. Jtanole v. United

States, 58 F. (2d) 115, 117 (C. C. A. 8th), supra;

Campbell vy. Aderhold, 36 F. (2d) 366, 367 (N. D.

Ga.), supra; Richardson v. Commonwealth, 131

Va. 802, 810, supra. See In re Patterson, 94 Kan.

439, 442, supra. And the failure to insert proper

conditions, or any condition at all, in the order of

probation, has no effect upon the court’s power to

terminate it. United States v. Mulligan, 48 F.

(2d) 93 (C. C, A. 2d), supra; People v. Trombly,

173 App. Div. 497, supra; Commonwealth v. Mc-

Govern, 183 Mass. 238, supra. See Archer V.

Snook, 10 F. (2d) 567, 568 (N. D. Ga.).

ROM PMNS SEER RM VT ME rh LR 8) BIN ROE Ae EP APL PDE PE PA SER get en , —

r . OS:

27

We believe that the provisions of the statute re-

lating to ‘‘a written statement of the conditions of

probation” were intended for the benefit and guid-

ance of the convict and not as a limitation upon the

power of revocation. While the conditions so pre-

scribed must be observed, and while revocation may

be had for their violation, the court should not be

limited by these conditions but should be free to

revoke probation for acts equally as reprehensible

as those expressly forbidden in the order.”

The District Judge can not foresee all the con-

tingencies that may arise from the future conduct

of the probationer which may affect “the ends of

justice and the best interests of the publie.”’ If

the District Judge’s power to revoke is limited to

the express terms of the order, so that the Govern-

ment takes the risk of any loose language, it will

result that probation orders will be burdened with

unnecessary detail, courts will hesitate to grant

probation where it would otherwise be extended,

appeals will be taken to delay the revocation, and

the purpose of the statute will be defeated.

In United States vy. Mulligan, 48 F. (2d) 93

(C. C. A. 2d), supra, a habeas corpus proceeding,

it was contended that the power to revoke proba-

*The ‘necessity for stringent supervision of criminals

placed upon probation has been commented upon by the

courts (Hiner v. Commonwealth, 250 Mass. 493, 497) and

was prominently in the minds of those who were influen-

tial in securing the enactment of the Federal Probation Act.

See House’Rept.. No. 423, 68th Cong., Ist Sess., p..5.

28

tion was dependent upon allegation and proof that

some condition expressed in the probation order

had been violated. With regard to this contention,

the court said (p. 94):

However desirable it may be that at least

the general terms of the probation be ex-

pressed in the order, nevertheless, in the

absence of a statutory requirement and in

view of the fact that the suspension of sen-

tence may continue even after the probation

period is ended, we can not deem the inser-

tion of the terms and conditions of proba-

tion in the order as requisite to its validity

or as a jurisdictional prerequisite to the

revocation of probation.

We submit that the correct interpretation of the

statute is that given it by the court below (R. 87):

The whole theory of probation is that of

giving to the convicted person an oppor-

tunity for reformation, and when it is mani-

fest that the probationer is not taking ad-

vantage of the opportunity given him proba-

tion should be 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 pro-

bationer 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.

See also cases cited at pp. 15, 17-18, supra.

29

Moreover, in the instant case there was a breach

of the conditions upon which probation was

granted. These conditions were that the peti-

tioner (R. 9-10)—

* * * entirely refrains from any viola-

tion of any law with the possible exception of

parking and traffic ordinances, and in all re-

spects conduct himself as a law abiding

citizen.

Bearing in mind the fact that the first year of

the probationary period was to be spent in jail, we

submit that the petitioner did not conduct himself

as ‘‘a law abiding citizen’’ when the evidence shows

that in disregard of his commitment and in abuse

of the obvious intent of an order permitting him to

be taken to the dentist for treatment, he remained

away from the jail on fifteen occasions during a

three months’ interval for periods ranging from

four to twelve and a half hours, most of which time

apparently was spent not with the dentist but in

riding around and in enjoying the comforts of his

home.

The petitioner contends that the conditions of his

probation were not breached because he violated

no law. In other words, he asserts that the condi-

tion that he should conduct himself ‘‘as a law abid-

ing citizen”’ has the same meaning as the preceding

condition in the probation order that he should

refrain ‘‘from any violation of any law.”’ As ap-

plied to a man who was to spend the first year of

his probationary period in jail, we do not believe

Ldenitepigh yay

PRED AAS a Be

ERAS UB Ss Cie.

See

A ow HE

BE RM RBIS SOLEIL INE CASE ABE EEE, So BE pa

RE etree tices

fs fo de

Beisnienciee

30

that such a construction of the probationary order

is sound. The requirement that the petitioner

should ‘‘in all respects conduct himself as a law

abiding citizen’’ was essentially one of good con-

duct. Prisoners have little opportunity to violate

criminal laws, and in the light of this fact it seems

elear that the District Judge, as indicated at the

hearing on the revocation of probation (R. 21, 49),

intended by the order of probation that sentence

should be suspended only so long as the petitioner’s

behavior was good.” If the condition in question

has the broader meaning which the District Judge

evidently intended it to have, there was clearly a

breach of it, for, as was said by the court below (R.

84), the petitioner ‘‘had taken advantage of a gen-

eral permit to carry out his own purposes quite

independently of the basis and theory upon which

the order was given.’’ His conduct was not con-

sistent with any reasonable conception of the idea

of good behavior, even for one in jail.

But even if the condition be given the stricter in-

terpretation asserted by petitioner, we submit that

there was a breach of it. Petitioner’s abuse of the

*° We do not think it goes too far to say that good con-

duct is an essential condition of every probation, whether

expressly stated or not. This, indeed, would seem to be

implied by the very meaning of the term. A declared aim

of the statute was to encourage “ industrious, law-abiding

habits ” by the creation of an “effective disciplinary sys-

tem.” See House Rept. No. 423, 68th Cong., 1st Sess., p. 2;

Hearings of February 21, 1924, before a subcommittee of

the Senate Judiciary Committee on S. 1042 and S. 1729,

68th Cong., Ist Sess., p. 14.

“2

—

31

limited privilege conferred upon him of going to

the dentist for treatment could not have occurred

without the connivance of those who were charged

with his custody. These officers could have been

punished for contempt of court in disregarding the

manifest intent of the order of commitment. If the

petitioner was not equally guilty of contempt he

was clearly a party to the flouting of the mandate

of the commitment by the officers. In U nited

States v. Hoffman, 13 F. (2d) 269, 272, affirmed, 13

BF. (2d) 278, 280 (C. C. A. 7th), the court held

under similar circumstances that the prisoner could

be charged with conspiring with his custodians to

commit a violation of Section 268 of the Judicial

Code (U.S. C., Title 28, See. 385), which provides

for the punishment of contempts of court. See also

In re O’Rourke, 251 Fed. 768 (Mont.); Ex Parte

Shores, 195 Fed. 627 (N. D. Iowa). The record

shows active cooperation by at least one of the peti-

tioner’s custodians in the abuse by petitioner of

the limited privilege accorded him to visit the

dentist. (R. 25-26.)

The petitioner violated the law in other respects.

The authority granted to him to visit the dentist

obviously did not permit him to “ride around”’ and

to visit and enjoy the comforts of his home for sub-

stantial periods, whether in or out of the custody

of his guards at the time. By taking without war-

rant a greater liberty than he was entitled to under

the order the petitioner under the common law rule

a

32

was guilty of an escape, so that while he was ‘‘riding

around’’ and in his home, when he was supposed

to be at the dentist’s office, his status was that of an

escaped prisoner. See In re O’Rourke, 251 Fed.

768 (Mont.); Steere v. Field, Fed. Cas. No. 13350

(R. 1.), p. 1221; Hobert’s Case, Cro. Car. 209; Ben-

ton v. Sutton, 1 Bos. & Pul. 24; Riley v. State, 16

Conn. 47, 51; Hefler vy. Hunt, 120 Me. 10, 13; In re

Rigg, 95 N. J. Eq. 341; Colby v. Sampson, 5 Mass.

310, 311. Cf. Whitaker v. Commonwealth, 188

Ky. 85 97; Wiggins v. State, 194 Ind, 118, 120-121.

Rvca if tue vce of these cases is not applicable in

the Federai courts,” the evidence seems clearly to

estabiish that his custodians were guilty of a viola-

tion of Section 138 of the Criminal Code, which

covers the offense of permitting prisoners to escape

(Ex Parte Shores, 195 Fed. 627, 680 (N. D. Iowa) ;

Zimmerman Vv. United States, 1 F. (2d) 712 (C. C.

A. 6th); In re O’Rourke, 251 Fed. 768 (Mont.),

supra), and that the petitioner, by his own testi-

mony, Was a party to a conspiracy to violate Sec-

tion 1388 (United States v. Hoffman, 13 F. (2d) 269,

"The Circuit Court of Appeals said (R. 84) that—

“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

a * *

This statement does not appear to be a holding by the

court below that the facts did not establish an escape, but

merely comment upon the trial Judge’s reasons for revoking

the probation. Under the view of the statute held by the

court below (R. 86-88) it was immaterial whether or not

the petitioner had violated any law.

33

272, supra; Ex Parte Lyman, 202 Fed. 303 (W. D.

Wash.) ).

It thus seems clear that petitioner was guilty of

a breach either of the condition that he should re-

frain ‘‘from any violation of any law”’ or that he

should ‘in all respects conduct himself as a law

abiding citizen.’’** The probation was therefore

properly revoked under the interpretation of the

statute enunciated in the Hollandsworth case as

well as under that adopted by the court below,

CONCLUSION

The judgment of the Cireuit Court of Appeals

should be affirmed,

Respectfully submitted.

THomMas D,. THACHER,

Solicitor General.

G. A. Younaguist,

Assistant Attorney General.

Pau D. MILLER,

Manton D. Kirrer,

WituiaM H, Ritey, Jr.,

Attorneys.

NOVEMBER, 1932.

? Where revocation is sought upon the ground that the

probationer has committed an offense, it is not necessary

that the probationer be convicted, but only that the proof

shall be such as to satisfy the District Judge that the offense

has been committed. Jianole v. United States, 58 F. (2d)

115 (C. C. A. 8th), supra; United States y. Bishop, 47 F.

(2d) 95, 97 (C. C. A. 5th).

APPENDIX

STATUTE INVOLVED

The Probation Act of March 4, 1925, ¢. 521, 48

Stat. 1259, 1260 (U.S. C., Title 18, Sees. 724-727),

provides, in part, as follows:

Tl at the courts of the United States hav-

ing 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 inter-

ests of the public, as well as the defendant,

will be subserved thereby, shall have power,

after conviction or after a plea of guilty or

nolo contendere for any crime or offense not

punishable by death or life imprisonment, to

suspend the imposition or execution of sen-

tence and to place the defendant upon pro-

bation 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: Pro-

vided, That the period of probation, together

with any extension thereof, shall not exceed

five years.

While or 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

(34)

pre uae se aN oi 6 ani Sa Sn il ee ee a

2 ren Dey PASS! PB RRA TRL IN Rs ee |

39

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.

Src. 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 proba-

tioner 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 pro-

bation period, but within the maximum

period for which the defendant might orig-

inally have been sentenced, the court may

issue a wari int and cause the defendant to

be arrested and brought before the court.

Thereupon the court may revoke the pro-

bation or the suspension of sentence, and

may impose any sentence which might orig-

.

inally have been imposed.

Section 3 provides for the appointment of pro-

bation officers.

Sec. 4. That it shall be the duty of a pro-

bation officer to investigate any case referred

to him for investigation by the court in

which he is serving and to report thereon

to the court. The probation officer shall fur-

nish to each person released on probation

under his supervision a written statement

of the conditions of probation and shall in-

struct him regarding the same. Such officer

shall keep informed concerning the conduct

and condition of each person on probation

=

a

36

under his supervision and shall report

thereon to the court placing such person

on probation. Such officer shall use all suit-

able methods, not inconsistent with the con-

ditions imposed by the court, to aid persons

on probation and to bring about improve-

ments in their conduct and condition. Each

officer shall keep records of his work; shall

keep accurate and complete accounts of all

moneys collected from persons under his

supervision ; shall give receipts therefor, and

shall make at least monthly returns thereof ;

shall make such reports to the Attorney Gen-

eral as he may at any time require; and shall

perform such other duties as the court may

direct. A probation officer shall have the

power of arrest that is now exercised by a

deputy marshal.

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U. 5. GOVERNMENT PRINTING OFFICE: toe