granted with respect to that sentence. In the leading case 12 the defendant had served only 1 day of his sentence when the court entered an order placing him on probation. The Supreme Court reversed the order on the ground that, by thus limiting the time when probation may be granted to the period prior to execution of sentence, the release procedures of pardon, parole, and probation would be harmonized. For, said the Court, if probation were grantable at any time during a convict's whole sentence it would cover the same ground already covered by the parole and pardon powers.

Probation may be granted, if service of sentence has not been begun, even though conviction was had prior to the enactment of the Probation Act.13 The fact that the defendant was sentenced at a preceding term of court does not prevent the issuance of an order of probation at a subsequent term,1* following affirmance of conviction on appeal.15

14

Only one case has been found which passes on the question whether a convicted person may insist that sentence be imposed if the court has suspended imposition and placed the person on probation. Obviously, it is not likely that probation will be objected to in many cases. However, where objection was made, the court disagreed with the contention "that probation, like pardon, may be refused by the convicted person. The [probation] act vests a discretion in the Court, not a choice in the convict." 16

13 United States v. Murray, 275 U. S. 347 (1928); see Archer v. Snook, 10 F. (2d) 567 (D. C. Ga. 1926); White v. Burke, 43 F. (2d) 329 (C. C. A. 10th, 1930); United States v. Praxulis, 49 F. (2d) 774 (D. C. Wash. 1931); United States v. Symonette, 57 F. (2d) 863 (C. C. A. 5th, 1932); but of. United States v. Wittmeyer, 16 F. Supp. 1000 (D. C. Nev. 1936) (holding probation may be granted after partial service of sentence where jurisdiction was expressly retained). Service of the sentence has begun if the person has been taken into custody by the marshal and is being detained awaiting transportation to the place at which his sentence is to be served; therefore the court was without jurisdiction to hear an application for probation presented while the prisoner was in custody of the marshal awaiting transportation to the penitentiary. Trant v. United States, 90 F. (2d) 718 (C. C. A. 7th, 1937).

"Nis v. James, 7 F. (2d) 590 (C. C. A. 9th, 1925); see Evans v. District Judge, 12 F. (2d) 64 (C. C. A. 6th, 1926).

14 Kriebel v. United States, 10 F. (2d) 762 (C. C. A. 7th, 1926); Ackerson v. United States, 15 F. (2d) 268 (C. C. A. 2d, 1926); United States v. Levy, 49 F. (2d) 811 (D. C. Wash., 1931).

White v. Steigleder, 37 F. (2d) 858 (C. C. A. 10th, 1930).

Cooper v. United States, 91 F. (2d) 195, 199 (C. C. A. 5th, 1937).

The courts are not in agreement as to whether a person convicted on several counts may be committed to the penitentiary on some counts while at the same time admitted to probation on other counts. One of the most recent cases on the point held that the separate sentences on the different counts were essentially one sentence, and that since the defendant had been confined to prison on some counts, the attempted probation of the remaining counts was void on the well-established theory that a court is without power to grant probation where service of sentence has begun.1 But it is not clear that this case represents the law on the subject. The Supreme Court has not directly decided the point, but in a recent case 18 where the situation of imprisonment on one count and probation on another existed the court did not advert to the possible construction that the original sentences were for a single term and in effect one sentence.

A district court in Pennsylvania has distinctly disapproved the Greenhaus case, taking the view that "sentences on different counts of an indictment must be treated as completely separate for purposes of the Probation Act, and that the court has the power to suspend execution of sentence on one of the counts and invoke the Probation Act in respect thereto. This court has consistently carried out this construction of the Probation Act in the imposition of sentences.

* * 19

The better view, although perhaps not supported by the numerical weight of authority, would seem to be that which treats the sentences on the various counts as one judgment for the purposes of the Probation Act. The theory and purposes of the act are defeated if the person is confined

17 United States v. Greenhaus, 85 F. (2d) 116 (C. C. A. 2d, 1936); contra. White v. Steigleder, 37 F. (2d) 858 (C. C. A. 10th, 1930).

18 Burns v. United States, 287 U. S. 216 (1932). In this case, while the defendant was serving his sentence on one count, proceedings were had which resulted in revocation of probation respecting the sentence on the other count. Although the affirmance of the order of revocation did not necessitate approval of the original probation, yet by its silence the court seems to approve the practice of granting probation on certain counts while at the same time imposing imprisonment on others.

19 Deliz v. Rexroad, 18 F. Supp. 862, 863 (D. C. Pa. 1937). The language quoted was not necessary to the decision, since revocation of probation on the second count could have been upheld even though the grant of probation had been void on the theory of the Greenhaus case. See Cooper v. United States, 91 F. (2d) 195 (C. C. A. 5th, 1937).

at all. If the probation period is to run concurrently with the term of imprisonment it is difficult to conceive of any effective supervisory work being done by the probation officer; the individual is primarily controlled by the prison authorities, and he does not have the opportunity to prove that he is worthy of probation. On the other hand, if probation is to follow confinement, the individual is first exposed to the prison associations which it is the purpose of probation to avoid, with the result that any subsequent rehabilitation is rendered more problematical.

Where a defendant is convicted or pleads guilty to several indictments at the same time, it has been held that imprisonment may be ordered on the first indictment and imposition of sentence suspended and probation granted on the second and third indictments, to begin after the sentence on the first has been served.20 Technically, this situation is easily distinguishable from that presented in the Greenhaus case, but actually there is little difference; in both instances probation immediately follows a period of imprisonment, with the possible result that incarceration may have jeopardized the probation program.

Procedure: Review.-It is clear that only the district courts may grant probation, for the statute confers that power only on courts having original criminal jurisdiction. No provision is made in the statute for review of probationary proceedings by the circuit courts of appeal. Early in the history of the Probation Act the question arose whether one whose application for probation had been denied could obtain any review of such action. The cases adjudicating this point are not in harmony, but it is believed that a right of review does exist, although it is not clear from the cases whether the proper way to seek it is by mandamus or by an appeal.

In Nix v. James,21 one of the first cases arising under the Probation Act, the district court refused to hear an application for probation on the ground that the court lacked jurisdiction. The petitioner applied to the circuit court

Kelly v. United States ex rel. Frad, 89 F. (2d) 866 (C. C. A. 2d, 1937), cert. granted, 57 S. Ct. 946 (1937).

7 F. (2d) 590 (C. C. A. 9th, 1925).

of appeals for a writ of mandamus compelling the lower court to hear the application. The writ was granted. This case, then, would seem to be authority for the proposition that the trial court may be forced, by writ of mandamus, to hear an application for probation. However, the case is weakened on this point by the fact that the proper procedural technique for obtaining review was not argued, and the appellate court directed its main inquiry to the question whether the Probation Act applied to convictions had prior to its enactment.

Evans v. District Judge 22 refused the petition for a writ of mandamus. In this case, the district judge had denied the application for probation because he thought that he had no jurisdiction. The defendant sought mandamus to require the entry of an order reciting that denial of the application was made solely on the ground of lack of jurisdiction. In denying the writ, the court said that the power to grant probation "is plainly and purely discretionary. If probation is refused, it cannot concern this court whether the reason for the refusal is good or bad." The theory seems to be that not only is the trial court uncontrolled in the disposition it makes of the application for probation after hearing, but in addition, a hearing cannot be forced.

A better-reasoned opinion in another case 23 held that while mandamus will not lie to compel a district court to hear an application for probation, review may be had by an appeal. The lower court had denied the petition on the ground that it lacked power to hear it. Thereupon the defendant applied for mandamus to secure a hearing upon the merits. The circuit court of appeals observed that the Probation Act gave power to grant probation only to the courts of original criminal jurisdiction and made no provision for review. However, the circuit courts of appeal have power to review "final decisions" of the district courts; even assuming that the action of a judge under the Probation Act is discretionary (and hence not subject to appeal or writ unless discretion

22 12 F. (2d) (C. C. A. 6th, 1926).

23 In re Gilbough, 13 F. (2d) 462 (C. C. A. 2d, 1926). In accord is Kriebel v. United States, 10 F. (2d) 762 (C. C. A. 7th, 1926), where denial of petition for probation on ground of lack of jurisdiction was reversed upon writ of error.

is abused), the court felt that a denial, not of action, but of power to act, was a decision and whether it was a "final decision" within the judiciary code could be tested by appeal. Therefore, since the court was of opinion that an appeal could be had in this case, it refused mandamus because the latter remedy will not be awarded if an appeal will lie.

It has been held that no appeal lies from an order declining to take jurisdiction of an application for probation.24 • This court reasoned that an order declining to take jurisdiction was not a final judgment, and thus no appeal would lie. The court intimated, however, that if the court below had either granted or denied the application an appeal could have been prosecuted. Such reasoning creates an anomalous situation; it permits review of the action taken on the petition in a matter purportedly within the discretion of the trial court, and yet allows the trial court to defeat any effort at review by the negative action of declining to take jurisdiction. Assuming that the trial court did have jurisdiction (and nothing in the facts indicates otherwise), it would seem that the court should not be permitted to decline to exercise it but should be held to its duty to hear the application. Then, after hearing the petition, its action thereon should be reviewable only for abuses of discretion.

Persons eligible.-Theoretically, probation may be granted to any person except where the punishment for the crime may be death or life imprisonment.25 Within this limitation, the discretion of the court as to who shall be placed on probation is uncontrolled.

Since the power to grant probation is a discretionary one, it follows that there are no specific grounds which entitle a defendant to demand the privilege. Probation, being a matter of grace and not of right, "there is no requirement that it must be granted on a specified showing." 26 Recommendations of leniency by the convicting jury; 27 old age, chronic ailments, or hardship to family; 28 or a pending pe

"Green, Moore & Co. v. United States, 29 F. (2d) 740 (C. C. A. 5th, 1928). 18 U. S. C. § 724 (1934).

Burns v. United States, 287 U. S. 216, 220 (1932).

United States v. Nix, 8 F. (2d) 759 (D. C. Calif. 1925).

"United States v. Meagher, et al., 36 F. (2d) 824 (D. C. Mont. 1929).