Appeal from the District Court of the United States for the Northern District of Illinois, Eastern Division; William H. Holly, Judge.
Before EVANS and SPARKS, Circuit Judges, and LINDLEY, District Judge.
Mr. Leo Trant was tried and convicted of violating the counterfeiting laws of the United States and sentenced to serve a term of ten years in the penitentiary. On appeal this judgment was affirmed by this court.
The mandate of this court was duly issued and reached the District Court on the 23rd day of March, 1937. Trant then sought probation, but the Marshal took him into custody before his application was presented to the court. His application was filed March 30, 1937. The Marshal took him into custody on March 29, 1937, by virtue of a commitment issued by the clerk under authority of said mandate.
The District Judge deemed himself powerless to hear the application because Trant had been taken into custody in execution of said sentence before the application was made to him.
Appellant appeals from the order dismissing his petition for probation.
Was the District Court without jurisdiction to hear the application for probation?
The District Judge very frankly and fairly set forth his position. From his statement in the order dismissing the petition, we quote:
"This Court declines to consider this petition on the sole ground, based upon the foregoing facts, that it has no jurisdiction to do so, because the said petitioner is in custody of the Attorney General, in execution of said sentence.
"Therefore, for said sole reason, said petition for probation is dismissed.
"And exception is therefore granted to the petitioner, Leo Trant, to the entry of this order."
From this language we understand the court did not pass on the merits of the application, because of lack of authority so to do. In other words, the application was presented after the petitioner was "in the custody of the Attorney General, in execution of said sentence" and therefore was too late.
The authority to place one under sentence on probation must be found in the statute. We must look to the same authority to find the ...