Opinion
No. 6354.
June 8, 1931.
Appeal from the District Court of the United States for the Southern Division of the Northern District of California; Adolphus F. St. Sure, Judge.
Habeas corpus proceedings by Joseph Santis opposed by Fred L. Esola, United States Marshal in and for the Northern District of California. From an order denying the writ, petitioner appeals.
Reversed and remanded with instructions.
June 3, 1930, defendant-appellant entered a plea of guilty to an information charging him with illegally possessing certain intoxicating liquor, and the following judgment was entered: "It is therefore ordered and adjudged that the said Joseph Santis pay a fine in the sum of One Hundred ($100) Dollars; further ordered that in default of the payment of said fine that said defendant be imprisoned in the County Jail, County of San Francisco, California, until said fine be paid or until he be otherwise discharged in due course of law. Upon payment of fine placed on probation for six (6) months and to report to Powers personally once a week. Further ordered remaining counts of information against said defendant dismissed." Defendant paid the fine, but failed to report to Powers (probation officer).
September 23, 1930, the following order was entered: "* * * After due consideration of said motion to revoke probation, it is ordered that said motion be and the same is hereby granted and that the probation heretofore granted herein be and the same is hereby revoked. Ordered that the defendant Joseph Santis, for the offense of which he stands convicted, pay a fine in the sum of $500.00; and it appearing to the court that said defendant, on June 3, 1930, paid the sum of One Hundred and no/100 ($100.00) Dollars, it is ordered that the defendant be given credit for said amount on the fine this day imposed and that in default of the payment of the balance of said fine, that he be imprisoned in the County Jail of the City and County of San Francisco, State of California, until said fine is paid or he is otherwise discharged in due course of law, and that a commitment issue herein accordingly; as detailed in Judgment Book."
On the same day an order was entered denying an application for a writ of habeas corpus alleging that defendant was illegally deprived of his liberty, and from the denial of the writ of habeas corpus this appeal was prosecuted. The sole issue is whether the court had power to place the defendant on probation after satisfaction of the judgment and thereafter, upon his failure to comply with the order, cause his arrest and impose another sentence of $500, crediting him with the $100 paid on the former sentence.
Joseph Edward Connolly, of San Francisco, Cal., for appellant.
George J. Hatfield, U.S. Atty., and Albert E. Bagshaw, Asst. U.S. Atty., both of San Francisco, Cal., for appellee.
Before WILBUR and SAWTELLE, Circuit Judges, and NETERER, District Judge.
The judgment entered was an adjudication and pronouncement upon the subject-matter of the litigation between the United States and the defendant. The penalty to be assessed upon conviction was in the discretion of the court, but limited by statute to a maximum amount. And the exercise of the discretion and making pronouncement thereof by the court was a judicial act and final determination. "At law, a judgment is yea or nay, for one party and against the other" Freeman on Judgments, § 2. A judgment on a verdict or plea of guilty must be certain and final. Morris v. State, 1 Black. (Ind.) 37. This judgment was certain and final. The defendant was committed until the fine was paid or he was otherwise released by operation of law. The judgment was also subject to civil execution. Pierce v. U.S., 255 U.S. 398, 41 S. Ct. 365, 65 L. Ed. 697. The power or control of the court ended when the judgment was satisfied by payment. United States v. Murray, 275 U.S. 347, 48 S. Ct. 146, 72 L. Ed. 309.
The court has power only in such case as it is expressly conferred by statute, and after conviction and judgment it is limited by the Probation Act (18 USCA § 724) to (a) suspend imposition of sentence, or (b) suspend execution of sentence and place defendant upon probation for such period and upon such terms and conditions as it may deem best. United States v. Murray, supra. The Probation Act is only operative when there is an unsatisfied judgment. The court may (1) commit the defendant until the fine is paid, etc.; (2) direct civil execution; or (3) suspend execution and place defendant upon probation; and (a) require payment of fine in installments, and also have defendant submit to restricted conduct through the court's parole officer, or (b) suspend payment altogether during good behavior. "Probation" simply means enlarging a person subject to commitment by suspension of sentence, during the regularity of conduct, and imposing conditions, and on default thereof arrest and commit until imprisonment is served or the judgment is satisfied. The Probation Act, supra, provides: "That the courts of the United States * * * when it shall appear * * * 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 * * * 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." (Italics supplied.)
In the instant case, not only was sentence not stayed, but defendant was committed until the fine was paid or he was otherwise released. Upon payment of the fine he was released. The judgment being satisfied, his liberty unrestricted was a matter of right. There is no provision of law that any condition may attach to a sentence as such Imprisonment and fine under the statute bear the same relation to probation. In one, the imprisonment is stayed, and in the other the payment of the fine is stayed; and, when either the imprisonment is entered upon or the fine is paid, the power of the court ends.
The part of the judgment placing the defendant on probation after payment of fine and requiring him to report to the probation officer at stated intervals is brutum fulmen.
The order is reversed, and the case remanded, with instructions to issue the writ.