Opinion
No. 5513.
August 8, 1934.
Appeal from the District Court of the United States for the Middle District of Pennsylvania; Albert W. Johnson, Judge.
Petition by the United States of America, on the relation of Frank J. Voorhees, for a writ of habeas corpus against Henry C. Hill, Warden, United States Northeastern Penitentiary. From an order dismissing the writ ( 6 F. Supp. 922), relator appeals.
Affirmed.
Michael C. Bernstein, of New York City, for appellant.
Frank J. McDonnell, U.S. Atty., of Scranton, Pa., and Herman F. Reich, Asst. U.S. Atty., of Sunbury, Pa., for appellee.
Before BUFFINGTON, DAVIS, and THOMPSON, Circuit Judges.
On October 24, 1932, the relator entered a plea of guilty for violations of the National Prohibition Act (27 USCA) and was sentenced to pay a fine and to be imprisoned for eighteen months. The execution of the eighteen months' sentence was suspended and the defendant placed on probation. The relator violated the terms of his probation. On December 8, 1933, after the ratification of the Twenty-First Amendment to the Constitution of the United States, the court ordered the relator to be remanded to the custody of the marshal for the execution of the sentence.
The relator, who is serving the sentence at the federal penitentiary at Lewisburg, Pa., petitioned the District Court for a writ of habeas corpus. The writ was allowed; but, after a hearing, the court ordered it to be dismissed. The relator appealed to this court on the ground that the sentence was void.
The opinion of the District Court disposes of the question according to our views. 6 F. Supp. 922. Final judgment and sentence were entered prior to the ratification of the Twenty-First Amendment. The Supreme Court specifically pointed out that its decision in United States v. Chambers, 291 U.S. 217, 226, 54 S. Ct. 434, 78 L. Ed. 763, 89 A.L.R. 1510, did not apply if such was the fact. The court before which the relator was tried did not impose a new sentence when it ordered the punishment originally imposed to be executed under the Probation Act (18 USCA § 724).
The order is affirmed.