erty, and hence this condition will be greatly simplified, and in keeping with the policy in the enforcement of all criminal laws, to have the period for which one is to be punished definitely fixed and known. This can easily be done by prescribing the same upon the conviction, or incoming of a plea of guilty. The sentence can then be imposed for the time so fixed, with the suspension by probation, or the execution of the sentence, in the discretion of the judge, but in no case for a period longer than five years. The period being once fixed, the terms for which probationers could be held would be well understood, and no question of the right to impose sentence would arise.

[7] The action of the District Court should be affirmed in the criminal case, No. 2470, for the reasons stated, and affirmed in the writ of habeas corpus case, because the positions respecting the constitutional questions raised are not well taken, and also because that proceeding cannot be availed of as an appeal in the criminal case, nor can the same be resorted to, to add to or amplify the record in a way not made in the criminal case, and presented therein.

Affirmed.

MCDOWELL, District Judge (concurring). I was not able to concur in the conclusion reached in the majority opinion until I had solved a question which gave me considerable difficulty, and which is not discussed in the foregoing opinion. As the subject is novel, and probably of interest to all federal trial judges, it may be worth while to state the cause of my perplexity and the reason for concurring. At the outset it should be said that I have never thought that any right given the probationer in this case by the federal Constitution has by possibility been infringed. The question with me has never been as to the power of Congress, but as to the intent shown by the Probation Act (43 Stat. 1259).

From the record in the habeas corpus case (2471) it appears that one of the conditions of probation was that the probationer should during probation observe all state and federal criminal laws. It also appears that the reason which induced the trial court to revoke the probation was a belief that the probationer had, after probation was granted, violated some one or more of the state and federal prohibition laws. The petition for habeas corpus asserts, and the return by the marshal admits, that the probationer has never admitted that he had committed any new offense, that he has never

waived trial by jury of such charges, and that he has never had a jury trial thereof.

Even if not always the fact, at least in an overwhelming majority of instances, probation is to the probationer a highly esteemed privilege. It is at least a postponement of execution, a stay, which in many cases may become perpetual. A probationer is during probation at liberty, even if under a more or less mild surveillance, and to a probationer who is objecting thereto a revocation of probation is certainly a deprivation and a loss of a privilege. Too plainly to require discussion, the power to revoke probation, when it exists, like the power to grant probation, is intended to be exercised without the assistance of a jury.

The fact that the conditions of probation are expressly required by the statute to be put in writing, and a copy thereof furnished to each probationer, most clearly implies that probation may not be revoked unless a condition of probation has been broken. The fact that power to revoke probation is expressly given, and the fact that the foregoing restriction on the power is implied, does not seem to me of importance. That which is certainly implied in a statute is as binding as that which is expressed. That the probation statute was not intended to give the courts an arbitrary power of revocation seems a necessary conclusion. Treating as a whole the express power to revoke and the implied restriction, the result is that the statute contains a grant of power to revoke because of a breach of a condition of probation, and does not grant power to revoke merely because a charge has been made that the probationer has broken a condition. If I am right in the belief that the statute does not give power to revoke probation in any case, unless and until there has been a breach of a condition of probation, it was of necessity intended by the lawmakers that some person or some tribunal should have the power to determine the truth of every charge of breach of condition of probation.

Many conditions of probation may properly be prescribed, and every possible condition may properly be put in one or the other of two classes. Obedience to the federal and state criminal laws falls properly into one class of conditions of probation, and all other possible conditions fall into the other class. In respect to this second class, it seems clear enough that the court which granted probation is impliedly given power to decide whether or not the probationer has violated a condition of probation. That such power should be given to such courts, even

if not absolutely necessary, is useful and in accordance with usage. In fact, in respect to the breaches of condition in the second class, the very failure of the statute to indicate some other person or tribunal as having the power is a sufficient reason for holding that the statute impliedly gives the power to the court which had previously granted probation.

However, where the breach of condition charged is the commission of a crime by a probationer who does not confess, and who has not been regularly convicted, the conclusion that the Probation Act gives power to the judge holding the court which granted probation to decide the question is not quite so easily reached. If the charge of crime is justified, such charge usually at least should be, and in regular course will be, tried by the tribunal which has jurisdiction of such charges independent of the probation statute. If the charge is too trivial, or too ill-supported, to justify prosecution in such court, it might properly be ignored by the court which granted probation. In other words, every charge of crime, if of sufficient gravity and if supported by evidence, can be prosecuted in the regularly constituted tribunal, and there can therefore be no absolute necessity that the court which granted probation shall determine for itself the truth of the charge. After conviction in such tribunal the judge holding the court which granted probation can of course revoke the probation or refuse to revoke it, as he thinks proper.

If the judge of the court which granted probation has the power to decide that a probationer has committed a crime, he can so decide in advance of the regular jury trial of such charge; and it is certainly possible that the judge's decision may not correspond with the subsequent verdict. If by the probation statute Congress has given the judge of the court which granted probation power to decide that a crime has been committed, Congress has provided for at least an occasional duplication of effort and of expense. Revoking probation does not excuse the new crime, and a regular trial by jury may and usually will follow.

Again, a decision by the judge of the court which granted probation, made in advance of the regular trial of the criminal charge, might prejudice either the prosecution or the defense on the regular trial of the criminal charge. The fact that probation had been revoked, because of a belief on the part of the judge that the probationer had committed a crime, might, if known, be high

ly prejudicial to the probationer on his trial on such charge in the criminal court. Likewise a refusal to revoke might prejudice the prosecution.

If the crime charged against the probationer be a federal offense, committed in the district in which he was granted probation, the judge who, in advance of the regular criminal trial, undertakes to determine the guilt or innocence of the probationer could disqualify himself. A judge who has formed, expressed, and acted upon an opinion that the accused is either guilty or innocent of a charge of crime may no longer be qualified to preside at the regular trial before a jury of the same charge. If the charge made against the probationer is a crime against a state law, there is at least danger of a breach of propriety in deciding in advance of a trial in the state court that the probationer either has or has not violated the state law. I do not here refer to the prejudice to the prosecution or to the defendant that might result, but to the seeming want of respect for the state court, shown by what may be an unnecessary decision by a federal court of a charge which is yet to be tried in the state court.

While the question is to me close and difficult of solution, it seems more satisfactory to hold that the above-mentioned dangers and possibilities afford strong reasons for caution in exercising the power of revocation, rather than reasons for denying the existence of the power in any case. Any grant of judicial power, and especially the grant of a new power, is liable to be abused. But such fact affords no sufficient reason for denying that the power has been granted.

In

many cases it may be judicious for the court which granted probation to refuse to act on any charge of crime against a probationer, unless the probationer admits the charge, or unless he has been regularly and finally convicted after trial by the duly con

stituted criminal authorities. But at least occasionally the possession by the court which granted probation of the power to speedily and certainly revoke the probation, when the judge holding such court has become satisfied that the probationer has broken a condition of probation by committing a crime, will be of very high value. The majority of probationers are and will be youthful, or at least of less than normal adult intelligence; and to such persons a power that can be very promptly exercised is much more respected and efficacious than a power that can be exercised only after the

(frequently slow) processes of the criminal law have been finally completed.

The purpose of the Probation Act is to put a selected part of those who, lacking selfcontrol, have violated the law, under the strongest inducement to long-continued good behavior. The most serious breach of good behavior would be the commission of crimes; and the inducement to good behavior, furnished by probation and the power to revoke probation, would be much weakened if in such cases revocation must always be delayed and subjected to all the chances of the usual criminal prosecution. As a deterrent of crime and as an incentive to good behavior, power to punish promptly is of very great value. This consideration gives no little support to the belief that Congress intended that the judge holding the court which granted probation should have a discretionary power to revoke probation, without necessarily waiting for action by the criminal

courts.

The possibility of an acquittal at the criminal trial of a probationer whose probation has already been revoked may exist in any case. But juries are so frequently influenced by sympathy, or by other improper reasons, that a subsequent acquittal does not necessarily show that the revocation of probation was erroneous; and the power to finally revoke in advance of and independent of the result of a trial of the criminal charge will of itself add greatly to the effectiveness of probation. I purposely do not discuss the effect of an acquittal at the criminal trial on the power to subsequently revoke probation. This question is not here involved, and there may be reasons for holding that the power does not exist in such cases, even though it does exist in the case at bar.

The delicacy of the question I have discussed is shown by the recent decision of the Supreme Court of South Carolina in State v. Renew, 132 S. E. 613, April 7, 1926, reversing State v. Sullivan, 127 S. C. 186, 121 S. E. 47, 52. The South Carolina statute involved in these cases (1 Code Cr. Proc. S. C. 1922 [128] § 5) reads as follows:

"The circuit judges of this state shall have the power and authority, in their discretion, to suspend sentences imposed by them, upon such terms and upon such conditions as in their judgment may be fit and proper: Provided, said power and authority shall not extend to cases of felony."

In the Sullivan Case, Judge Cothran, dissenting, expressed the belief that in all such cases action on a proceeding to revoke probation should be held in abeyance until

1. Indictment and information 139-Motion to quash indictment, eight months after filed, on ground order for drawing grand jury was made by judge when out of his district, held properly overruled.

Even if indictment be subject to attack because order for drawing grand jury, which found it, was made by judge when absent from his district, objection to it on that ground, by motion to quash, being made eight months after absence of explanation or excuse for long defiling of indictment, is properly overruled, in lay and showing that defendant was prejudiced by the order being so made.

2. Indictment and information—125(4,41).

Indictment under Cr. Code, § 215, for use of mails in furtherance of fraudulent scheme, held not to show more than one scheme to defraud, and not to be objectionable, though execution of single scheme might involve commission of more than one crime (Comp. St. § 10385).

3. Indictment and information

137(6)

Failure of indictment to more particularly state method of causing circular to be delivered by mail to defraud is not available objection; defendant not being prejudiced thereby, in view of statement of government's counsel (Rev. St. § 1025 [Comp. St. § 1691]).

Objection to indictment for not more specifically stating mode in which defendant caused circular to be delivered by mail, in furtherance of scheme to defraud, cannot, under Rev. St. § 1025 (Comp. St. § 1691), prevail; it not appearing that defendant's substantial rights were prejudiced thereby, but government's counsel give bill of particulars, announcing how it required, on overruling of motion to quash, to

would be shown the circular was caused to be delivered, and accused not being taken by surprise, but having sufficient opportunity to prepare defense.

4. Criminal law 1169 (2).

Defendant was not prejudiced by admission fact shown by uncontradicted testimony elicited of testimony; it being cumulative evidence of by his counsel.

5. Criminal law 753 (2).

Requested instruction that jury find for de

fendant was properly overruled; evidence tending to prove indictment's material allegations.

In Error to the District Court of the United States for the Western District of Louisiana; Benjamin E. Dawkins, Judge. *Certiorari denied 47 S. Ct., 71 L. Ed. --.

fraud, or for obtaining money or property by false or fraudulent pretenses or representations, may be such that the complete execution of it would involve the commission of more than one criminal offense. The language of section 215 of the Criminal Code does not indicate that the lawmakers intended to enable one who uses the mails in furtherance of a scheme to defraud to obtain immunity for so doing by making the commission of a plurality of crimes a part or feature of his scheme. We are not of opinion that an indictment for an offense denounced by that statute is subject to objection on the ground that the alleged scheme, for the purpose of executing which an alleged use of the mails was made, was such that the execution of it would or might involve the commission by the accused of more than one criminal offense. Even if the indictment would have been subject to objection if it had shown the use of the mails for the purpose of executing several alleged fraudulent schemes, it is not subject to objection on that ground, because its allegations do not show that the accused devised more than one scheme to defraud. The court did not err in ruling that the indictment was not subject to objection on the ground now under consideration.

[3] The above-mentioned third ground of objection to the indictment suggests that it was fatally defective because it did not contain a more specific statement of the particular mode in which the circular mentioned was caused by the accused to be delivered to V. G. Simmons through the post office at Shreve port. Following the above-mentioned allegations of the indictment were the allegations that the accused, at a time and place stated, "so having devised the said scheme and artifice to defraud, and in and for executing the said scheme and artifice, and in and for attempting to do so, and in and for defrauding by and through the said scheme and artifice aforesaid, did willfully, knowingly, feloniously, and fraudulently cause to be delivered through and by the post office of the United States at Shreveport, Caddo parish, state of Louisiana, in the Western district of Louisiana, and within the jurisdiction of this honorable court, to the said V. G. Simmons, then a resident of Shreveport, Caddo parish, state of Louisiana, who was the person so intended to be defrauded as aforesaid, a certain mimeographed or multigraphed descriptive circular headed as follows: 'Five as well-bred, good lookers as live. All registered in F. D. S. B.,' and reading in part as follows, to wit" -the set out part of such circular contain

ing what purported to be a description of a registered pointer bitch named "Lady Ripple Jing," and the following name and address at the end of the circular: "Lon Kilpatrick, No. 371 Court avenue, Memphis, Tenn."

While the just quoted part of the indictment charging the use of the mails to defraud did not follow literally the language of the statute "knowingly cause to be delivered by mail according to the direction thereon," the indictment as a whole was such as to suggest to any one informed of its contents that the evidence to be relied on to support it would be to the effect that the accused caused the alleged delivery by mail by depositing, or causing to be deposited, in the mail, a postpaid envelope containing the described circular, and addressed or directed to V. G. Simmons at Shreveport; that being the usual way of accomplishing the alleged result by one situated as the accused was with reference to another person located in another state. The allegation charging that the accused caused the described circular to be delivered by mail to V. G. Simmons at Shreveport, when that allegation is considered in connection with the indictment's allegations showing that the accused lived at Germantown, Tenn., a small town near Memphis, and that the alleged scheme in pursuance of which the charged use of the mail was alleged to have been made included the sending of circulars by mail from the vicinity of Memphis to said Simmons at Shreveport, well might be regarded as impliedly showing or indicating that the accused caused the described circular to be delivered by mail to V. G. Simmons at Shreveport, according to the direction thereon. To say the least, the allegations of the indictment are such that there could have been no plausibility in a contention of the accused, made at the time of the trial, nearly eight months after the indictment was returned, that the indictment gave him no reason to expect that its allegations as to causing the described circular to be delivered by mail might be sought to be supported by evidence tending to prove that he mailed, or caused to be mailed, such circular in Memphis or its vicinity in a postpaid envelope or container addressed to V. G. Simmons at Shreveport. The allegations of the indictment were such as to apprise the accused that he might have to meet such proof. He was entitled to be informed of the nature and cause of the accusation against him by a charge made with sufficient definiteness as to enable him to make his defense and avail himself of the record of conviction or acquittal for his protection against