James v. United States , 140 F.2d 392 ( 1944 )

PER CURIAM.

The facts in this case are clearly and succinctly stated in the following portion of the opinion of the court below:

“George James plead guilty to a two count indictment and was ‘sentenced to serve four years in the United States penitentiary at Atlanta, Georgia, on the first count of this indictment, and on the second count of the indictment, imposition of sentence was suspended for a period of five years after the expiration of the sentence on count one, and the defendant was ordered placed on active probation, conditioned upon his not again violating any law, State or Federal, during the period of said suspension and probation’. Defendant was conditionally released by the Parole Board, and while so at large and before the period of conditional release had expired, committed the offenses for which he was ruled into this Court to have the suspension- set aside and sentence imposed upon the second count.

“Counsel, appointed by the Court to represent James in the present proceeding, filed a demurrer or motion to quash the rule to show cause why the suspension should not be set aside, contending that until the four years of the original sentence had expired, and as it is asserted, probation began, this Court had no power or control over the prisoner authorizing it to entertain the present proceeding.”

On the other hand the Government contends that the probation became effective at the time of the sentence on the first count. The record of sentence is as follows : “* * * the Court thereupon sentenced him to serve 4 years in the United States Penitentiary at Atlanta, Georgia, on the first count of this indictment, and on the second count of the indictment, imposition of sentence was suspended for a period of five years after the expiration of the sentence on Count One, and the defendant was ordered placed on active probation, conditioned upon his not again violating any law, state or federal, during the period of said suspension and probation.”

The issue thus presented is whether the period of probation began at the time of the imposition of the sentence on the first count. The lower court, answering in the affirmative, imposed a five-year sentence on the appellant on the second count of the indictment, thereby impliedly revoking the suspension of imposition of sentence and probation, from which order this appeal is prosecuted.

A future date not being clearly fixed for the commencement of probation, a majority of this court concur in the construction that the original judgment placed the appellant on probation at the time it was rendered, and that defendant was under probation at the time of the commission of the acts for which revocation of probation is sought and obtained, from which it would necessarily follow that the lower court was acting within its power and discretion in entering the judgment in question.

Affirmed.