Before MINTON and DUFFY, Circuit Judges, and LINDLEY, District Judge.
This is an appeal from an order of the district court suspending a fifteen year sentence theretofore imposed on the defendant by that court and placing him upon probation for five years. Such an order is appealable. Berman v. United States, 302 U.S. 211, 58 S. Ct. 164, 82 L. Ed. 204; Korematsu v. United States, 319 U.S. 432, 63 S. Ct. 1124, 87 L. Ed. 1497.
In July, 1936, defendant was sentenced by the Circuit Court of Macoupin County, Illinois, to be confined in the State Penitentiary of Illinois for a period of from one year to life. While serving the State sentence the defendant was brought before the United States District Court for the Northern District of Illinois, Western Division, where he entered a plea of guilty to a federal indictment for bank robbery. The court sentenced defendant to a term of fifteen years said sentence to commence on the date of the expiration of the State sentence under which the defendant was then serving.
On March 12, 1945, the Illinois Parole Board determined to parole defendant on condition that on release he be turned over to the United States Marshal. The defendant learned of the prospective parole, and on March 26, 1945, wrote a letter to the United States District Court stating that he wished a stay of execution of his sentence and that he did not wish to elect to serve upon that sentence. There is no evidence that this letter was ever received by the judge or other court officials. On the following day, March 27, 1945, the defendant was released on parole from the Illinois State Penitentiary and was turned over to the custody of the United States Marshal who took him from Statesville to Chicago and there lodged him in the Cook County Jail.
On the same day, to wit, March 27, 1945, the defendant, through his attorney, filed with the clerk of the district court a formal written petition containing among other things the following:
"The undersigned further represents unto the Court that he desires to apply to the United States District Court for the Northern District of Illinois, Western Division, for probation; that there will be no judge holding court in the United States District Court for the Northern District of Illinois, Western Division, until March 31, 1945; that it is essential that the petition of the undersigned for probation be heard before he is delivered by the United States Marshal to the warden of the federal penitentiary.
"And therefore the undersigned prays that the honorable judge of said Court stay the execution of said sentence * * * until his application for probation can be heard."
The record shows that on the same date the Honorable Elwyn R. Shaw, District Judge, signed the following order:
"It is Ordered that execution of sentence in this cause be and it hereby is stayed until the 17th day of April, A.D. 1945, and the above entitled cause is referred to the United States Probation Officer for investigation."
About ten minutes after his arrival at the jail defendant saw the warden and told him, "I wish to file a writ of habeas corpus and also to file notice to stay execution of my sentence." Borrowing a pencil and sheet of paper he then wrote such a letter (Exhibit 10) to the court.
On April 2, 1945, defendant was released from custody upon habeas corpus proceedings, the district court holding that the fifteen year sentence imposed upon the defendant was void. Upon appeal this judgment was reversed by this court. United States ex rel. Lombardo v. McDonnell, 7 Cir., 153 F.2d 919. The opinion of this court was filed on February 14, 1946, and a rehearing was denied March 13, 1946.
On February 18, 1946, the defendant, by his attorney, filed in the clerk's office of the district court a motion for a stay of execution of sentence and for probation, wherein he recited that his judgment of discharge under habeas corpus had been reversed by this court, and among other things stated "that it is essential that the petition of the undersigned for probation be heard before he is delivered by the United States Marshal to the warden of the federal penitentiary." Defendant prayed that the judge of said court stay the execution until his application for probation could be heard. On March 12, 1946, defendant was officially discharged from State parole, and on that date he was again taken into custody by the United States Marshal. On March 18, 1946, Judge Shaw entered the following order:
"It Is Ordered that the petition of the defendant for probation be and it is hereby continued to April 17, 1946; that this cause be and it is hereby referred to the Probation Officer of this Court for investigation, and that the defendant be released from custody upon giving bond in the sum of $2,000.00 ...