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whether one A. E. Tangren, a Chief Machinist in the U. S. Navy, can be dropped from the rolls of the Navy by authority of the President, under the Act of April 2, 1918, c. 39, 40 Stat. 501 (U. S. C., title 34, sec. 1200, art. 36), which provides:

"That the President is hereby authorized to drop from the rolls of the Navy or Marine Corps any officer thereof who is absent from duty without leave for a period of three months or more, or who, having been found guilty by the civil authorities of any offense, is finally sentenced to confinement in a State or Federal penitentiary: Provided, That no officer so dropped shall be eligible for reappointment."

You state that in July, 1929, Tangren was convicted by the United States District Court for the Southern District of California of certain offenses against the United States, and sentenced as follows:

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$1,000 fine and stand committed to San Diego County Jail until paid or until discharged therefrom by due process of law, and be imprisoned in the United States penitentiary to be designated, for the term and period of 18 months; imprisonment in said penitentiary to be suspended for a period of two years on condition that the partnership between A. E. Tangren and E. C. Koehler be immediately dissolved, and that as long as defendant Tangren is an officer of the United States Navy, he must not engage in private business.” Tangren did not appeal from this judgment; no proceeding was begun during the term at which it was rendered to alter or set it aside, and the term has now expired.

The question is whether Tangren has been "finally sentenced to confinement in a * * * Federal penitentiary," within the meaning of the Act of April 2, 1918, supra. Execution of his sentence, in so far as it prescribed such confinement, was suspended under the Probation Act of March 4, 1925, c. 521, 43 Stat. 1259 (U. S. C., title 18, secs. 724, 725). That Act, so far as here pertinent, provides that the courts shall have

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power, after conviction or after a plea of guilty or nolo contendere 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. The court may revoke or modify any condition of probation, or may change the period of probation:

"SEC. 2.

"At any time after the probation period, but within the maximum period for which the defendant might originally have been sentenced, the court may issue a warrant and cause the defendant to be arrested and brought before the court. Thereupon the court may revoke the probation or the suspension of sentence, and may impose any sentence which might originally have been imposed."

The form of the sentence and the provisions of the Probation Act raise two questions: (1) whether Tangren has been "sentenced to confinement" in a penitentiary, and (2) whether, in view of the language of section 2, he has been "finally sentenced" to such confinement.

With respect to the first question, it may be suggested that the imposition of sentence and the suspension of execution thereof were simultaneous acts, and that the effect of the entire action of the court was not to sentence Tangren to confinement in the penitentiary.

The solution of the question, however, ultimately depends upon the construction of the Act of April 2, 1918, and what test Congress intended to lay down as the basis of authority to drop an officer from the rolls of the Navy.

The purpose of that Act was not to impose additional punishment upon naval officers convicted of crime, but rather to promote the efficiency of the Navy and to maintain the high standard of its officer personnel by providing that officers who fail to maintain a certain standard of conduct may be dropped from the rolls and rendered ineligible for reappointment. By the statute, being convicted and "finally sentenced to confinement in a * * Federal penitentiary" is fixed as a criterion of unfitness.

These words do not, taken literally, require incarceration, and that it was not the intent of Congress to establish such a test is made clearer by the language of the title of the statute: "An Act to authorize the President to drop from

the rolls any naval or Marine Corps officer absent without leave for three months, or who has been convicted of any offense punishable by confinement in the penitentiary by the civil authorities, and prohibiting such officer's reappointment." While the body of the Act is not susceptible of a construction that only conviction of an offense which the law makes "punishable " by confinement in the penitentiary is required, the use of the word "punishable" in the title is persuasive that no stricter test was intended by the body than its literal text imports. The prescribed criterion relates to the gravity of the offense. The test is the commission of an offense sufficiently serious that confinement in a penitentiary is not only authorized by the law as punishment therefor but is also regarded by the court as an appropriate punishment in the particular case.

The question, however, whether sentence will be suspended and probation granted depends not so much upon the gravity of the offense as upon reasons personal to the individual offender. The purpose of the Probation Act, as stated in United States v. Murray, 275 U. S. 347, 357-358, was to provide

66* * * an amelioration of the sentence by delaying actual execution or providing a suspension so that the stigma might be withheld and an opportunity for reform and repentance be granted before actual imprisonment should stain the life of the convict. *

"The great desideratum was the giving to young and new violators of law a chance to reform and to escape the contaminating influence of association with hardened or veteran criminals in the beginning of the imprisonment.

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Probation is the attempted saving of a man who has taken one wrong step and whom the judge thinks to be a brand who can be plucked from the burning at the time of the imposition of the sentence.

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Such action as the court might take in suspending execution of the sentence, in order to accomplish the humane purposes of the Probation Act, can not eradicate the fact of unfitness, as defined by the statute of April 2, 1918, which has been established by Tangren's conviction and his sentence. (Cf. 31 Op. 225.)

It has been held that the action of the court in suspending execution of sentence is distinct and separable from the sentence itself. In United States v. Gargano, 25 F. (2d) 723, 724, the Court said:

66 * * * The sentence is imposed according to the penal statute under which the conviction is had, and is a judicial function flowing directly from the statute under which the criminal proceeding is brought; whereas the duties imposed by the Probation Act are of rather an auxiliary or ancillary character, sui generis in nature. These constitute a judicial function only by virtue of the legislative authority which Congress vested separately in the court, and which might well have been vested in some executive officer, board, bureau, or commission.

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See also Ex Parte United States, 242 U. S. 27, 39-42; Ackerson v. United States, 15 F. (2d) 268, 270. The cases construing various State probation Acts, predecessors of the national Probation Act, supra (see United States v. Murray, 275 U. S. 347, 355; Ackerson v. United States, supra, p. 269), likewise adopt the view that the suspension of execution of sentence or grant of probation are acts separate and distinct from the judgment or sentence of the court and can not be regarded as being part of such judgment or sentence. State v. Drew, 75 N. H. 402, 403; Belden v. Hugo, 88 Conn. 500; King v. Commonwealth, 246 Mass. 57; In re Hall, 100 Vt. 197.

Tangren's sentence expressly specified imprisonment in "the United States penitentiary to be designated, for a term and period of 18 months." For the above reasons, I do not think that the fact that execution of that sentence was suspended makes it less a sentence "to confinement in Federal penitentiary " within the meaning and intent of the Act of April 2, 1918.

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The question whether he has been "finally sentenced " to such confinement remains.

In criminal law the sentence pronounced by the court is the final judgment. United States v. Lecato, 29 F. (2d) 694; People v. Scott, 326 Ill. 327; People v. Fisher, 237 Mich. 504. Until sentence is pronounced there is no final judgment from which an appeal may be taken. United States v. Lecato, supra; Commonwealth v. Carver, 224 Mass. 42; Hill

v. People, 10 N. Y. 463; State v. Vaughan, 71 Conn. 457; State v. Bongiorno, 96 N. J. L. 318. After sentence has been imposed, even though its execution has been suspended, it is still a final judgment from which appeal must be taken in apt time in order to preserve the defendant's rights thereto. Sutton v. State, 194 Ind. 479; Mariano v. Hibbard, 243 Mass. 90.

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Since Tangren did not appeal from the judgment and took no steps during the term at which sentence was imposed to alter or set it aside, the court, apart from statutory provision to the contrary, has now no power to modify its final judgment. United States v. Mayer, 235 U. S. 55, 67. The only doubt as to the conclusion that Tangren has been finally sentenced " to confinement in a Federal penitentiary is created by the provision of section 2 of the Probation Act that the court, at "any time after the probation period, but within the maximum period for which the defendant might originally have been sentenced," may revoke the "suspension of sentence" and "impose any sentence which might originally have been imposed." It may be suggested that this provision authorizes the court, although the judgment term has expired, to change its judgment, so that Tangren may not be regarded as having been "finally sentenced" to confinement in a penitentiary.

The Probation Act empowers the court to suspend either the execution of sentence or the imposition of sentence. Where imposition of sentence is suspended and probation granted, and the probation and suspension are later revoked, the case reverts to its status at the time probation was granted, and imposition of sentence is necessary before the offender can be imprisoned. Where, however, a sentence has been once imposed and only execution suspended, and the suspension of execution is revoked, the original sentence then becomes operative and may be enforced. In view of the general rules as to the finality of sentences after the expiration of the judgment term, there is strong ground for the view that the power given in section 2 to sentence probationers to "any sentence which might originally have been imposed " was intended to apply only in cases where imposition of sentence was originally suspended and the sus

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