Probation Act March 4, 1925 (Comp. St. Supp. 1925, §§ 10564%-10564c) held not unconstitutional, as in conflict with pardoning power of president.

2. Intoxicating liquors 13.

Const. U. S. Amend. 18, held to confer on Congress power to make possession of intoxicating liquors for beverage purposes a criminal offense, as was done by National Prohibition Act, tit. 2, §§ 3, 25, 33 (Comp. St. Ann. Supp. 1923, §§ 101381⁄2aa, 101381⁄2m, 101381⁄2t).

3. Criminal law 1001.

District Court held to have acted within its discretion and power under Probation Act March 4, 1925 (Comp. St. Supp. 1925, $$ 10564%-10564%c), in setting aside order of

probation and entering sentence at term subse

quent to that at which plea of guilty was received and period of probation fixed.

4. Criminal law 1001.

Much latitude is allowed District Judges in enforcement of Probation Act March 4, 1925 (Comp. St. Supp. 1925, §§ 10564%-10564%c). 5. Criminal law 1058.

Where no exception was taken to action of trial court in revoking probation and imposing sentence, although defendant was present, it is unnecessary to determine whether defendwas entitled to hearing on question of

ant

breach of terms of probation.

6. Criminal law 1001.

Under Probation Act March 4, 1925 (Comp. St. Supp. 1925, 88 10564%-105644%), District Court had right to suspend imposition as well as execution of sentence.

7. Habeas corpus 4.

Habeas corpus cannot be availed of as appeal in criminal case, nor resorted to, to add to or amplify record in a way not made in criminal case, and presented therein.

In Error to and Appeal from the District Court of the United States for the Southern District of West Virginia, at Charleston; George W. McClintic, Judge.

L. J. (Bear Cat) Riggs was convicted of having possession of intoxicating liquor and of carrying on the business of a retail liquor dealer without paying the special tax required by law, and he brings error. Petition by L. J. Riggs for a writ of habeas corpus, to be directed to Siegel Workman, United States Marshal for the Southern District of West Virginia. From an order denying the writ, petitioner appeals. Affirmed in both cases.

Certiorari denied 47 S. Ct. 110, 71 L. Ed. -.

5

A. M. Belcher, of Charleston, W. Va., for plaintiff in error and appellant.

Elliott Northcott, U. S. Atty., of Huntington, W. Va. (William J. Donovan, Asst. Atty. Gen., and B. J. Pettigrew, Asst. U. S. Atty., of Charleston, W. Va., on the brief), for defendant in error and appellee.

Before WADDILL and PARKER, Circuit Judges, and McDOWELL, District Judge.

WADDILL, Circuit Judge. These two cases, the first named being two criminal prosecutions consolidated by consent, and the second a writ of habeas corpus growing out of the said cases, involve the question of the validity of the sentence imposed upon the plaintiff in error (in criminal case No. 2470), who was defendant in the District Court, and will be referred to hereinafter as defendant. The cases were heard together, because of their relation to each other, and will be considered and disposed of in a single opinion. In the criminal case the defendant was indicted for feloniously having in his possession on the March, 1925, intoxicating liquor intended for beverage purposes, in violation of section 3, title 2 of the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 101381⁄2aa). The said indictment further recited the previous convictions of the defendant for two offenses of the same character, to wit, on the 4th day of December, 1923, and on the 18th day of December, 1924. The defendant was also indicted for unlawfully and feloniously carrying on the business of a retail liquor dealer without having paid the special tax required therefor by law.

day of

The record recites that on the 25th of April, 1925, the defendant agreeing thereto, the two indictments, numbered, respectively, 266 and 288, were ordered to be consolidated, and that thereupon on said day the defendant pleaded guilty to said indictments, and that, "it appearing to the satisfaction of the court that the ends of justice and the best interest of the public, as well as that of the said defendant, will be subserved by the suspension of the imposition or execution of sentence, and by placing the defendant upon probation, it is therefore considered by the court that the said L. J. (Bear Cat) Riggs be placed upon probation for the period of four years."

The record also shows that at a later day, and at another term of court, to wit, on the 21st day of November, 1925, as follows:

"This day came again the United States, by its United States attorney, as well also

as the defendant, L. J. (Bear Cat) Riggs, in his own proper person, whereupon the United States made it appear by evidence satisfactory to the court that the said Riggs had violated the terms and conditions of his probation duly imposed upon him by this court on the 25th day of April, 1925, upon the defendant entering pleas of guilty to indictments Nos. 266 and 288, pending against him in this court, charging him, the said L. J. (Bear Cat) Riggs, with a third violation of the National Prohibition Act, and with having carried on the business of a retail liquor dealer without having paid the special tax as provided by law, which cases were consolidated on the date aforesaid.

"The court thereupon proceeded to pronounce judgment upon said pleas of guilty, and here now fixes the term of his sentence of confinement at four years. Therefore it is considered by the court that the said L. J. (Bear Cat) Riggs be confined and imprisoned in the United States penitentiary at Atlanta, Georgia, for the period of four years, and that the United States of America recover no costs from said defendant about her prosecution in this behalf expended, and the said L. J. (Bear Cat) Riggs is remanded to the custody of the marshal of this court."

The assignments of error, as well in the criminal case as in the habeas corpus proceeding, challenges the legality of the District Court's action as above recited, particularly: Its jurisdiction and power to set aside, on the 21st of November, 1925, the probation order of the 25th of April, 1925, made at a previous term of the court, and enter judgment in lieu thereof sentencing the defendant to the penitentiary, as shown by its order of the 21st of November aforesaid; that the indictments alleging unlawful possession of intoxicating liquor charged no offense against the laws of the United States, because the Congress was without power under the Eighteenth Amendment to the Constitution to make the mere possession of intoxicating liquors a criminal offense, and that the act seeking so to do was unconstitutional and void; that the Probation Act of March 4, 1925 (Comp. St. Supp. 1925, §§ 10564%-10564%c), is unconstitutional and void, because it is in conflict with the Constitution of the United States, especially in that it encroaches upon, and in effect deprives the President of, the right to exercise executive clemency in criminal cases; that the court was wholly without jurisdiction, upon the record in the case, to enter any judgment against the defendant, and

In

should have set aside its judgment and discharged the prisoner from custody, as asked for in his petition for habeas corpus. passing upon these assignments, consideration will first be given to the constitutional questions raised.

First. It is earnestly insisted that the Probation Act of the 4th of March, 1925, is unconstitutional, because the same encroaches upon the pardoning power of the President. Sections 1, 2, and 5 of the Probation Act (43 Stat. c. 521, pp. 1259, 1260 [Comp. St. Supp. 1925, §§ 105644%, 10564%a]) are as follows:

"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, that the courts of the United States having original jurisdiction of criminal actions, except in the District of Columbia, when it shall appear to the satisfaction of the court that the ends of justice and the best interests of the public, as well as the defendant, will be subserved thereby, shall have power, after conviction or after a plea of guilty or nolo contendere for any crime or offense not punishable by death or life imprisonment, to suspend the imposition or execution of sentence and to place the defendant upon probation for such period and upon such terms and conditions as they may deem best; or the court may impose a fine and may also place the defendant upon probation in the manner aforesaid. The court may revoke or modify any condition of probation, or may change the period of probation: Provided, that the period of probation, together with any extension thereof, shall not exceed five years.

"While on probation the defendant may be required to pay in one or several sums a fine imposed at the time of being placed on probation and may also be required to make restitution or reparation to the aggrieved party or parties for actual damages or loss caused by the offense for which conviction was had, and may also be required to provide for the support of any person or persons for whose support he is legally responsible.

"Sec. 2. That when directed by the court, the probation officer shall report to the court, with a statement of the conduct of the probationer while on probation. The court may thereupon discharge the probationer from further supervision and may terminate the proceedings against him, or may extend the probation, as shall seem advisable.

"At any time within the probation period the probation officer may arrest the proba

tioner without a warrant, or the court may issue a warrant for his arrest. Thereupon such probationer shall forthwith be taken before the court. At any time after the probation period, but within the maximum period for which the defendant might originally have been sentenced, the court may issue a warrant and cause the defendant to be arrested and brought before the court. Thereupon the court may revoke the probation or the suspension of sentence, and may impose any sentence which might originally have been imposed.

for judgment, recourse must be had to Congress, whose legislative power on the subject is, in the very nature of things, adequately complete." Ex parte United States, 242 U. S. at page 52, 37 S. Ct. 78, 61 L. Ed. 129, L. R. A. 1017E, 1178, Ann. Cas. 1917B, 355.

A more specific ruling on this subject could not well be furnished. Indeed, the Supreme Court, in plain and unequivocal language, pointed to Congress as possessing the requisite power to afford the relief needed.

Since the passage of the Probation Act of March 4, 1925, the questions under con

Sections 3 and 4 (sections 105644b, 10564%c) provide for the appointment of probation officers and define their functions and authority.

[1] The position taken is clearly untenable, as 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. The legislation is of a highly remedial character, and the same should receive a liberal interpretation, having regard to the interests of the unfortunate, in whose behalf it was enacted. It in no way encroaches upon the authority of the Chief Executive, as the authorities clearly establish. The Supreme Court, in considering the authority of the President to pardon, said:

It extends to every offense known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment." Ex parte Garland, 4 Wall. 333, 380 (18 L. Ed. 366).

That court, in a much later case (242 U. S. 27, 37 S. Ct. 72, 61 L. Ed. 129, L. R. A. 1917E, 1178, Ann. Cas. 1917B, 355), having under consideration the necessity for legislation to enable the courts to indefinitely suspend sentence upon a conviction of a crime, and the course to be pursued in future convictions, said:

cuit Court of Appeals of the Ninth Circuit (7 F. [2d] 590), and the constitutionality of the act fully sustained, and the same held in no manner to encroach upon the pardoning power of the President. This case will be found to contain an able and comprehensive review of the law applicable here. It arose under the act we have to consider, and to it and the authorities cited therein special reference is made (Nix v. James, 7 F.[2d] 590, 594), as is also to a decision of the Circuit Court of Appeals of the Seventh Circuit (Kriebel v. U. S., 10 F.[2d] 762), likewise construing the Probation Act.

In Richardson v. Commonwealth, 131 Va. 802, 808, 809,1 a very recent case, in an opinion by President Prentis, will be found an able and interesting review of the authorities on the subject of the power of Congress to pass acts of the character under consideration, and holding that they do not invade the pardoning power of the executive. [2] Second. Likewise we are unable to perceive why, under the Eighteenth Amendment, ample power was not conferred upon Congress, by appropriate legislation, to make it an offense to have unlawfully in one's possession intoxicating liquors intended for beverage purposes. It is earnestly insisted that such authority was not afforded, and that hence the provisions of the Volstead Act, seeking to create such offense, are void for the lack of constitutional authority, and that the indictment against the accused charges no offense under the law. The validity of the constitutional amendment in question has been approved by the Supreme Court (National Prohibition Cases, 253 U. S. 350, 356, 357, 40 S. Ct. 486, 588, 64 L. Ed. 946), and it cannot be doubted that it was the intent and purpose in thus amending the organic law to forbid the manufacture, sale, or transportation of intoxicating liquors, or the unlawful possession thereof to be used for beverage purposes. Grogan v. Walker & Sons, 259 U. S. 80, 89, 90, 42

1 109 S. E. 460.

S. Ct. 423, 66 L. Ed. 836, 22 A. L. R. 1116). It may be that the precise words respecting the possession of liquor are not used in the constitutional amendment, and it not infrequently happens in enacting laws that such is the case; but the purpose of the constitutional amendment was to cover generally the very subject under consideration, and it undoubtedly vested in Congress the power to say what reasonably, and in its good judgment, should and should not be necessary to enforce the same. Congress was clothed with the general power, along with the several states, to enforce the amendment by appropriate legislation; that is to say, to pass laws for the regulation of the subject under consideration and to provide punishment for the violation of such laws and regulations. In U. S. v. Fisher, 2 Cranch, 358, at page 396 (2 L. Ed. 304), the court said:

"Congress must possess the choice of means, and must be empowered to use any means which are in fact conducive to the exercise of a power granted by the constitution."

In McCulloch v. Maryland, 4 Wheat. 316-421 (4 L. Ed. 579), Chief Justice Marshall said:

"Sound construction of the Constitution must allow to the national Legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional."

Volstead Act Oct. 28, 1919, c. 85, 41 Stat. 305 (Comp. St. Ann. Supp. 1923, § 101384 et seq.), under consideration, has been held to be valid by the Supreme Court, and the act amply covers the offense charged in the indictment. Section 3, title 2, of this act provides:

"No person shall on or after the date when the Eighteenth Amendment to the Constitution of the United States goes into effect, manufacture, sell, barter, transport, import, export, deliver, furnish or possess any intoxicating liquor except as authorized in this act, and all the provisions of this act shall be liberally construed to the end that the use of intoxicating liquor as a beverage may be prevented."

Section 25, title 2, of the same act

Section 33, title 2, of the same act (Comp. St. Ann. Supp. 1923, § 101382t), provides as follows:

"After February 1, 1920, the possession of liquors by any person not legally permitted under this title to possess liquor shall be prima facie evidence that such liquor is kept for the purpose of being sold, bartered, exchanged, given away, furnished, or otherwise disposed of in violation of the provisions of this title."

In Street v. Lincoln Safe Deposit Co., 254 U. S. 88, 94, 41 S. Ct. 31, 65 L. Ed. 151, 10 A. L. R. 1548, Mr. Justice Clarke, speaking for the Supreme Court, emphasized the fact that the presumption arising from the presence of liquor in a warehouse, then being considered, could be explained, and that it was explained there. But that cannot avail the defendant here, where the indictment charges the unlawful possession of the liquor to be used for beverage purposes, to which a plea of guilty was entered, and proof made of similar offenses in two other cases by the same defendant. Other decisions will be found to strongly support the views herein expressed. Crane v. Campbell, 245 U. S. 305, 38 S. Ct. 98, 62 L. Ed. 304; Hamilton v. Kentucky Distilleries, etc., 251 U. S. 146, 40 S. Ct. 106, 64 L. Ed. 194; Ruppert v. Caffey, 251 U. S. 264, 40 S. Ct. 141, 64 L. Ed. 260; Rhode Island v. Palmer, 253 U. S. 350, 40 S. Ct. 486, 588, 64 L. Ed. 946; Everard's Breweries v. Day, 265 U. S. 545, 558, 559, 560, 44 S. Ct. 628, 68 L. Ed. 1174; U. S. v. Riggs (C. C. A. 4th Circuit) 299 F. 273; Massey v. U. S. (C. C. A.) 281 F. 293.

In Hamilton v. Kentucky Distilleries, supra, at page 156 (40 S. Ct. 108), Mr. Justice Brandeis, speaking for the court, and noting the fact that the police power was reserved to the States by the Tenth Amendment to the Constitution, said:

"But it is none the less true that, when the United States exerts any of the powers conferred upon it by the Constitution, no valid objection can be based upon the fact that such exercise may be attended by the same incidents which attend the exercise by a state of its police power, or that it may tend to accomplish a similar purpose."

In Everard's Breweries v. Day, supra, at page 560 (44 S. Ct. 631), the court, speaking through Justice Sanford, said:

"It is clear that Congress, under its ex

press power to enforce by appropriate legislation the prohibition of traffic in intoxicating liquors for beverage purposes, may adopt any eligible and appropriate means to make that prohibition effective. The possible abuse of a power is not an argument against its existence."

Defendant cites in support of his position U. S. v. Beiner et al. (D. C.) 275 F. 704, U. S. v. Dowling (D. C.) 278 F. 630, Hilt v. U. S., 279 F. 421 (C. C. A. Fifth Circuit), and U. S. v. Berger, 9 F. (2d) 167, a recent decision of Judge Thompson, in the District Court for the Western District of Pennsylvania. We have examined these cases with care, and so far as they support, or tend to support, the contentions made, we cannot follow them, as applicable to or controlling in this case.

[3, 4] Third. This brings us to the consideration of the question of the propriety of the District Court's action complained of; that is, the court's jurisdiction and authority, upon the incoming of the plea of guilty, to suspend the imposition or execution of sentence and place the defendant upon probation for the period of four years; and subsequently, after the defendant had served 5 months and 13 days of the probationary period (4 years), to set aside at another term of the court the order of probation, and enter sentence for the full term of 4 years in the penitentiary. The court, in taking the action that it did, at a term subsequent to that at which the plea of guilty was received, and the original period of probation fixed, clearly acted within its discretionary authority and power, under the probation statute. In the enforcement of this act, much latitude must be allowed to the District Judges in affording to defendants the benefits thereof; hence the ordinary rules regarding terms of court cannot be adhered to strictly. Nix v. James (C. C. A.) 7 F. (2d) 590, 592, 593,

supra.

In this particular case, under the very recent decisions of this court (Strickling v. Walker, Sheriff, 296 F. 337, and Gillespie v. Walker, Sheriff, 296 F. 330), authority existed in any event to pursue the course followed, although at another term, and the defendant's objection in that respect is not well taken.

Fourth. The defendant further urges that he was entitled to a trial upon the question of whether he had violated the conditions of his probation. The question of procedure under the Probation Act is not free from difficulty, especially because of the great latitude conferred upon the District Judges in enforcing the same. Manifestly

many things may be done that ought not to be, and the doing of which would tend to make questionable some of the provisions of the act, because of the far-reaching and unreasonable restraints and embarrassments that might be placed upon the rights of an accused. The act should not, however, be viewed in the light of the unreasonable things that may be done under it, but rather having regard to its general purposes, and the wise and humane things that should be done in its due administration, looking to the amelioration of the condition of the unfortunate in whose behalf it was enacted. The purpose of the act was to give to the federal District Courts a free hand in humanely dealing with criminal classes which come before them, and much discretion, of course, should be allowed, having regard to the offenses charged, and character of the particular offenders, keeping always in view their previous conduct, their afflictions, their age, whether the offense arose from the indiscretions of youth or the infirmities of old age, their sex, and, indeed, anything that would tend to throw light on their behavior, and the motives and intent with which they acted.

[5] It is not necessary that we pass upon the defendant's contention that he was entitled to a hearing upon the question of the breach of the terms of his probation, for it affirmatively appears of record that at the time of the revocation of the probation and imposition of sentence he was present in his own proper person, and the government made it appear by evidence satisfactory to the court that the conditions of the probation had been violated, and no exception appears to have been taken to such action of the court.

[6] Fifth. We have accepted the contention of the government that the court had the right to suspend the imposition, as well as the execution, of the sentence. We cannot but feel that the act is susceptible of this interpretation; but in view of the great discretion placed in the District Courts, and the large numbers of persons throughout the country to be affected by its action in administering this act, the suspension of the imposition of sentence will doubtless be rarely availed of, save in cases making that course especially desirable and humane, by reason of affliction, infirmity, sex, or age of the particular offender. It could not have been the policy of Congress, in enacting the law under consideration, to place any greater number of persons than possible in a state of uncertainty as to their personal lib