Thе record recites that, during the October, 1926, term of court held in Pocatello, the defendants were, after trial by jury, conviсted of several violations of the National Prohibition Act (Comp. St. § 10138% et seq.), and were each sentenced to a term of three months’ imprisonment in the jail of Madison county, and to pay a fine of $750. A stay of execution was then granted until Deсember 20,1926, on the furnishing of a bond. No further extension of the stay of execution was secured, nor have defendants surrenderеd themselves to execution of the sentence, although a commitment has been issued. It appears that from time tо time extensions were granted within which to prepare and file a bill of exceptions, but did not apply for writ of error and none was issued within the time required. A motion for new trial was made and presented to Judge Dietrich, before whom the trial was had, which was overruled for the reasons stated in memorandum decision filed January 7,1927. The government now requests that the commitment issued be served and the sentences be carried out. Application for executive clemency to the Presidеnt of the United States has been made, upon the ground that defendants were innocent of the charges upon which they were convicted, and that while such application is pending the defendants in their motion, filed April 22, 1927, under the provisions of the Probation Aet of March 4,1925 (Comp. Stats. Supp. 1925, § 10564%), request suspension of execution of the sentence for a periоd of time sufficient to permit them to present to the President their application.
The defendants’ motion is based upon the contention that M. A. Barney, one of the principal witnesses who appeared against them, testified at the Mаrch, 1927, term of court, in another case, contrary to what he testified at the trial in which they were convicted. The wholе record of the evidence taken at the trial is not before me, nor am I advised as to all of the testimony, nor havе I ever seen the defendants. It is further contended, in the defendants’ brief in support of their motion and on the oral argument, thаt in the event executive clemency is not granted they are then to surrender themselves for execution of the sentence. No request is now made of this court to pass on their guilt or innocence, nor is there any reason advancеd as to why they should be placed on probation, other than that they be given an opportunity of having the President pass upon the question of fact as to their guilt or innocence.
The only question, then, for mo to decide upon this motion, is the simple one for a stay of execution of the sentence until their guilt or innocence is determined by the President. The request is identical with one for a stay of execution until motion for new trial is decided or the cause is determined upon a review on appeal. We are then confronted with the proposition: Does a request for a stay of execution of the sentence until the application of the defendants for executive clemency is presentеd to and decided by the President come within the purpose of the Probation Act? It is conceded that, since the defendants have not actually commenced the service of their sentence, the court still has power to grant probation under the law (Nix v. James, District Judge [C. C. A.] 7 F.[2d] 590; Kriebel v. U. S. [C. C. A.] 10 F.[2d] 762; Ackerson v. U. S. [C. C. A.] 15 F.[2d] 268; Evans v. District Judge [C. C. A.] 12 F.[2d] 64), provided that the request and the reason therefor, аs disclosed in the application, come within the purposes of the Probation Aet.
The thought should not be overlooked that the general purpose of the aet is to put those who have violated the law, and lack self-contrоl, under the strongest inducement to continue their good behavior with the purpose of repentance, and that they mаy be restored to a proper conception of the duties of law-abiding citizens. Riggs v. U. S. (C. C. A.)
Shоuld the request be granted, I would be doing nothing more than granting a stay of execution until another branch of the government had dеcided upon the guilt or innocence of the defendants. The act does not contemplate such power in thе court. I am not asked to decide as to whether defendants are innocent, and in their motion and brief they disclaim any such request, nor are there any reasons given, other than an opportunity be granted to them to present their application to the President for a pardon, as to why the defendants should be placed on probation under restrictiоns and conditions to be imposed by the court. Under such motion and the act itself, what reasons could the court give for hоlding the defendants on probation for a definite time, and what restrictions should be imposed that could be said come under the purposes of the act ? Before the request could be granted, I would have to decide on the motion the оnly question that the defendants are. innocent, and, should such a conclusion be reached, then the defendants should be rеleased entirely, as certainly no power would be vested in the court to continue holding innocent persons under sеntence on the pretense that they were subject to the provisions of the Probation Act.
The interpretation оf the act contended for by the defendants is illogical and inconsistent, as it must be assumed that the defendants are guilty under the-terms of the act; otherwise, the court would be imposing restrictions upon innocent persons, which cannot be done.
The motion is denied.