79 Opinion of the Court. of the original provision as interpreted by Murray, suggests a contrary result. In the final analysis, this case must be governed by the meaning of the statute. Are we to read the statute to mean that the courts should be able to suspend the uncommenced terms of a cumulative sentence after the prisoner has been imprisoned and entered upon the execution of a prior term? We think not. The Murray opinion points out that it is unlikely that Congress would have found it wise to make probation apply in such a way as to unnecessarily overlap the parole and executive-clemency provisions of the law. Federal judicial power to permit probation springs solely from legislative action. Ex parte United States, supra. The authority to put a convict on probation for an uncommenced term, after service of an earlier term has begun, has not been clearly given. Therefore, in construing the provisions for probation, we adhere to the Murray interpretation to avoid interference with the parole and clemency powers vested in the Executive Branch.12 We conclude that the probationary power ceases with respect to all of the sentences composing a single cumulative sentence immediately upon imprisonment for any part of the cumulative sentence.13 12 That a contrary construction would result in an unnecessary overlap between probation and parole provisions is made clear by a reference to 18 U. S. C. § 4202. That section provides that a federal prisoner may be paroled after he has served one-third of the "term or terms" for which he is confined. Thus, if serving a cumulative sentence composed of two or more consecutive sentences, a prisoner is eligible for parole when he has served one-third of the total sentence. See also 18 U. S. C. § 4161, which provides that "When two or more consecutive sentences are to be served, the aggregate of the several sentences shall be the basis" for computing time off for good behavior. 13 This conclusion as to the meaning of the statute is further supported by a recognition of some of the practicalities of sentencing. At the time of entering a judgment of conviction, the district judge. Opinion of the Court. 350 U.S. We note the argument that since Congress has authorized the sentencing court to limit probation to less than all of the terms of a cumulative sentence,1 it should follow that the probation powers for each term exist until that term is begun. But the power to limit a grant of probation to less than an entire cumulative sentence does not compel a conclusion that the power to grant probation as to each of the separate sentences exists until the convict begins to serve each. We think, moreover, this argument is met by our conclusion that the provisions for probation should be interpreted to avoid, so far as possible, duplicating other existing provisions for the mitigation of criminal sentences. See note 12, supra. Congress has done nothing since this Court's decision in United States v. Murray, supra, to indicate that probation power should be applied after the beginning of any term of a sentence. Affirmed. is in the best position to fix the terms of a convict's sentence. Thereafter, however, the judge becomes progressively less familiar with the considerations material to the adjustment of the punishment to fit the criminal. At the same time, the officials of the Executive Branch responsible for these matters become progressively better qualified to make the proper adjustments. Cf. United States v. Soeder, 120 F. Supp. 594, 597; United States v. Bernett, 123 F. Supp. 841, 846. These considerations apply as much to a series of consecutive sentences as to a simple general sentence. But see Note, Application of Federal Probation to Convicts Serving Consecutive Sentences, 64 Yale L. J. 260, 265–268 (1954). 14 18 U. S. C. § 3651. The provision for probation "limited to one or more counts or indictments" was added by the 1948 codification of Title 18. The Reviser's Notes indicate that this provision was added because it "reflects exactly the practice followed by the Federal courts." H. R. Rep. No. 304, 80th Cong., 1st Sess., App. A173. Thus, this addition did not result in a substantive change in the Probation Act and does not of itself reveal any extension thereof. Syllabus. REECE v. GEORGIA. CERTIORARI TO THE SUPREME COURT OF GEORGIA. No. 112. Argued November 9, 1955.-Decided December 5, 1955. 1. Georgia law requires that objections of a defendant to the composition of a grand jury be raised before indictment. Petitioner, a Negro of low mentality, was indicted and convicted of a capital offense, but was not provided with counsel until the day after he was indicted. Before his arraignment, petitioner moved to quash the indictment on the ground that Negroes had been systematically excluded from service on the grand jury. This motion was denied on the ground that it was made too late. Held: Failure to consider the motion to quash on its merits was a denial of due process of law and violated the Fourteenth Amendment. Pp. 87-90. (a) The indictment of a defendant by a grand jury from which members of his race have been systematically excluded is a denial of his right to equal protection of the laws. P. 87. (b) Where no opportunity to challenge the grand-jury selection has been afforded a defendant, his right may be asserted by a plea in abatement or a motion to quash before arraignment. P. 87. (c) Assignment of counsel in a state prosecution at such time and under such circumstances as to preclude the giving of effective aid in the preparation and trial of a capital case is a denial of due process of law. Pp. 89-90. 2. This case being properly here upon review of the second judgment of the Georgia Supreme Court therein, this Court has jurisdiction to consider all of the substantial federal questions determined in the earlier stages of the litigation, and re-examination of such questions here is unaffected by a ruling of the state court that its first decision became the law of the case. P. 87. 211 Ga. 339, 85 S. E. 2d 773, reversed and remanded. Daniel Duke argued the cause and filed a brief for petitioner. Eugene Cook, Attorney General of Georgia, and Robert H. Hall and E. Freeman Leverett, Assistant Attorneys General, submitted on brief for respondent. Opinion of the Court. 350 U.S. MR. JUSTICE CLARK delivered the opinion of the Court. Petitioner, Amos Reece, a Negro, was convicted of the rape of a white woman in Cobb County, Georgia. He contends here that Georgia's rule of practice requiring him to challenge the composition of the grand jury before indictment violates the Due Process Clause of the Fourteenth Amendment. The Georgia Supreme Court affirmed his conviction, 211 Ga. 339, 85 S. E. 2d 773, and we granted certiorari because of the important issues involved, 349 U. S. 944. Reece was arrested on October 20, 1953, and was held in the county jail until his indictment three days later. On October 24, the day after his indictment, two local attorneys were appointed by the trial court to defend him. On October 30, before his arraignment, Reece moved to quash the indictment on the ground that Negroes had been systematically excluded from service on the grand jury. This motion was overruled after a hearing. On the same day, petitioner was tried, convicted and sentenced to be electrocuted. The Supreme Court of Georgia held that the motion to quash was properly denied because, by Georgia practice, objections to a grand jury must be made before the indictment is returned, 210 Ga. 578, 82 S. E. 2d 10, but reversed the case on another ground, not pertinent here, and remanded it for a new trial. Before his second trial Reece filed a special plea in abatement which alleged systematic exclusion of Negroes from the jury commission, the grand jury which indicted him and the petit jury about to be put upon him. This plea also stated that petitioner had neither knowledge of the grand jury nor the benefit of counsel before his indictment. The State's demurrer to this plea was sustained, and petitioner was again tried, convicted and sentenced to be electrocuted. It is this judgment which is here for review. 85 Opinion of the Court. At the outset the State contends that the case is not properly before us because petitioner did not apply for a writ of certiorari within 90 days after the first judgment of the Supreme Court of Georgia. This contention is clearly without substance. A timely application for certiorari to review the second judgment was made, and the case is properly here. 28 U. S. C. § 1257. We have jurisdiction to consider all of the substantial federal questions determined in the earlier stages of the litigation, Urie v. Thompson, 337 U. S. 163, 172–173, and our right to re-examine such questions is not affected by a ruling that the first decision of the state court became the law of the case, Davis v. O'Hara, 266 U. S. 314. This Court over the past 50 years has adhered to the view that valid grand-jury selection is a constitutionally protected right. The indictment of a defendant by a grand jury from which members of his race have been systematically excluded is a denial of his right to equal protection of the laws. Patton v. Mississippi, 332 U. S. 463; Norris v. Alabama, 294 U. S. 587; Rogers v. Alabama, 192 U. S. 226; Carter v. Texas, 177 U. S. 442. Where no opportunity to challenge the grand-jury selection has been afforded a defendant, his right may be asserted by a plea in abatement or a motion to quash before arraignment, United States v. Gale, 109 U. S. 65, 72. Of course, if such a motion is controverted it must be supported by evidence, Patton v. Mississippi, supra; Martin v. Texas, 200 U. S. 316. We mention these principles since the State contests the merits of Reece's claim of systematic exclusion. In the hearing on his motion to quash before the first trial, he presented uncontradicted evidence to support the following facts: no Negro had served on the grand jury in Cobb County for the previous 18 years; the 1950 census showed that the county had a white population of 55,606 and a Negro population of 6,224; the same census showed 362618 0-56--12 |