Appeal from the District Court of the United States for the Northern District of Indiana, Fort Wayne Division; Thomas W. Slick, Judge.
Before ALSCHULER, EVANS, and SPARKS, Circuit Judges.
The only question presented by this appeal arises out of the following facts:
Appellant pleaded guilty April 22, 1929, to an indictment which charged him and others with a conspiracy to violate the National Prohibition Act. His codefendants stood trial and were convicted and sentenced at the same April 1929 term. On May 15, 1930, appellant was sentenced to two years in the penitentiary. After serving fourteen months he was paroled. Upon his violation of the terms of the parole, he was arrested and was about to be returned to the penitentiary when he instituted these habeas corpus proceedings to secure his freedom.
This appeal is from the judgment of the district court discharging the writ.
It is his contention that the court was without jurisdiction to impose the sentence entered on May 1, 1930, because there elapsed an entire term of court between the term at which he pleaded guilty and the term at which he was sentenced. The court record disclosed the following proceedings at the time of the entry of his plea of guilty:
"April 22, 1929, Defendant Ralph Rosenwinkel asks leave to withdraw plea of not guilty and enter plea of guilty. Granted by same is done."
Respecting the proceedings on May 15, 1930, the parties stipulated that:
"At the time the defendant, Rosenwinkel, was sentenced on May 15, 1930 the Judge * * * made no statement and made no entry upon the docket nor upon the record that the defendant, Rosenwinkel, was being held for investigation for matter of probation, nor for a deferment of sentence."
The decision in Ex parte United States, 242 U.S. 27, 37 S. Ct. 72, 61 L. Ed. 129, L.R.A. 1917E, 1178, Ann. Cas. 1917B, 355, denied to federal courts the right to indefinitely suspend sentence in criminal cases after conviction, or on plea of guilty. That decision however did not determine the question here presented for two reasons. (a) In the instant case, there was no indefinite suspension of appellant's sentence. The trial of appellant's codefendants had not begun, and we may well assume that the court postponed sentence in order to ascertain all the enlightening facts so that the most intelligent sentence might be pronounced. (B) Since the decision in the above-cited case, Congress has enacted legislation which enlarged the powers of federal trial courts in respect to sentences in criminal cases.
Section 724, title 18, USCA, reads:
"The courts of the United States having original jurisdiction of criminal actions * * * shall have power, after conviction or after a plea of guilty or nolo contendere * * * 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 the may deem best; * * *."
The decision in Ex parte De Angelo (C.C.A.) 50 F.2d 847, is squarely in point. Even the action taken by the accused there was similar ...