the trial court pronounced, either at the same or a succeeding term." Statutes. It was not until 1925, 9 years after the decision in the Killits case, that Congress enacted the probation law which authorized district courts to suspend either imposition or execution of sentence and place the person on probation. This statute will be treated in the following section.

is not exhausted until sentence is

PROBATION

Historical development.-Since the growth and development of the Federal probation system has been described elsewhere,1 the sketch here given will be brief.

Between 1916 and 1925 attempts were made to secure the passage of a law authorizing Federal judges to grant probation. It was not until the latter year, in the closing days of the session, that Congress enacted the National Probation Act. Although the theory of probation seemed to meet with wide approval, it was objected that the proposed bill would give judges too much discretion in granting probation. One Congressman asserted that in States where the prohibition law was not favored judges would abuse their discretion by placing "every bootlegger who is convicted on probation." 2

The 1925 act authorized the Federal district courts, except in the District of Columbia, to appoint not more than one salaried probation officer. These appointments were to be made from the civil-service register. The Attorney General's supervision was limited to approving the salary fixed by the court and requiring reports from probation officers. The appropriations for 1927, 1928, and 1929 were limited to the nominal sum of $25,000.

Miller v. Aderhold, 288 U. S. 206, 211 (1933).

43 Stat. 1259 (1925); 18 U. S. C. § 724 et seq. (1934). It is not clear whether imposition or execution of sentence may be suspended without an order placing the person on probation. Ex parte De Angelo, 50 F. (2d) 847 (C. C. A. 6th, 1931) seems to indicate that such action is permissible. But see Burr v. United States, 86 F. (2d) 502, 503 (C. C. A. 7th, 1936), cert. denied, 57 S. Ct. 507 (1937), in which the court said that "We know of no instance wherein the court may permanently suspend sentence or the imposition of sentence except by virtue of the terms of the Probation Act."

1 Bates, Growth and Future of the Federal Probation System, in Glueck, Probation and Criminal Justice (1933) 250.

266 Cong. Rec. 3891 (1925).

43 Stat. 1259 (1925), 18 U. S. C. § 724 et seq.

In 1930 the law was amended in several important particulars. Judges were empowered to appoint without reference to the civil-service list, and the limitation of one officer to each district was removed. The Attorney General was charged with the duty of coordinating the probation system and was authorized to appoint an agent to prescribe record forms, investigate the work of the different officers and "by all suitable means to promote the efficient administration of the probation system and the enforcement of the probation laws in all United States courts." Probation officers were also required to perform such duties with respect to parolees as the Attorney General might request.* Following the 1930 amendments, Congress increased the annual appropriation from $25,000 to $200,000. For the fiscal year ending June 30, 1937, Congress appropriated $727,540 for the Federal probation system. With increased funds, the work of the probation service was greatly expanded; at the beginning of the fiscal year July 1, 1936, there were 142 probation officers, as compared with only 8 in 1930.6

The objectives of the probation law have been stated by the late Chief Justice Taft to be the following:"

The great desideratum was the giving to young and new violators of law a chance to reform and to escape the contaminating influence of association with hardened or veteran criminals in the beginning of the imprisonment. * * The avoidance of imprisonment at time of sentence was therefore the period to which the advocates of a Probation Act directed their urgency. Probation was not sought to shorten the term. Probation is the attempted saving of a man who has taken one wrong step and whom the judge thinks to be a brand who can be plucked from the burning at the time of the imposition of the sentence.

Rehabilitation of the penitent offender is the object of the law; probation, it is felt, will permit a young and new offender "to take advantage of an opportunity for reformation which actual service of the suspended sentence might make less probable." s

46 Stat. 503 (1930).

49 Stat. 1331 (1936).

Re. Att'y Gen. (1936) 220.

United States v. Murray, 275 U. S. 347, 357-358 (1928).

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

There is no question but that, in the main, the probation act is constitutional. In a case arising shortly after the passage of the act, the contention was made that the power of probation encroached upon the executive power of pardon. The court held, however, that "the act in no way contravenes the constitutional right of the President, in the exercise of executive clemency, and that power of the Chief Executive, in respect to those serving their probationary sentences, is as full and complete as if the probation law had never been enacted."9

Present organization.-The judges of the various district courts appoint the probation officers for their respective courts. The officers have jurisdiction only within the area served by the court to which they are attached. The Bureau of Prisons of the Department of Justice exercises a close supervision over the work of all probation officers, through an executive officer known as the probation supervisor. Standards and rules. for probation officers and the conduct of the work are prescribed by the Bureau of Prisons. In the appropriation acts since 1930, Congress has stipulated that no part thereof "shall be used to defray the salary or expenses of any probation officer who does not comply with the official orders, regulations, and probation standards promulgated by the Attorney General.10

Procedure. The probation act makes no provision as to when the power to grant probation shall cease; it merely states that the court shall have power "to suspend the imposition or execution of sentence and to place the defendant upon probation." 11 But it has become settled that once a person has begun serving his sentence no probation may be

Riggs v. United States, 14 F. (2d) 5 (C. C. A. 4th, 1926), cert. denied, 273 U. S. 719 (1926). See also Nix v. James, 7 F. (2d) 590 (C. C. A. 9th, 1925); Kriebel v. United States, 10 F. (2d) 762 (C. C. A. 7th, 1926). There is a possibility that section 2 of the act (18 U. S. C. § 725) may conflict with the Constitution. A part of that section provides that the court may, after the expiration of the probation period but within the time for which the defendant might originally have been sentenced, cause the arrest of the defendant and thereupon "may impose any sentence which might originally have been imposed." For a discussion of the possible conflict of this provision with the fifth amendment to the Constitution, see infra, pp. 11-12.

10 See, e. g., 49 Stat. 1331 (1936).

11 18 U. S. C. § 724 (1934).

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,14 following affirmance of conviction on appeal.15

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

12 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. Prazulis, 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).

13 Nix 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).

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

16 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.17 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

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).