(dissenting).
In United States v. Antinori, 5 Cir., 59 F.2d 171, this court held that in revoking a suspended sentence the district court might impose a new one for a reduced term. It upheld the validity of the statute involved, and construed it to provide for retention of jurisdiction beyond the term in cases of probation, but it took pains to note that the power of the court to increase such sentences was not before it.
The statute grants to courts of the United States power to revoke the probation or the suspension of sentence, and to impose any sentence that might originally have been imposed; but implicit in this power is the inhibition of the Fifth Amendment that no one shall be twice put in jeopardy for the same offense. Prior to the statute, courts of the United States had control of their sentences during the term at which they were made, but this power could not be used to violate the guarantees of personal rights found in the Fifth Amendment. Ex parte Lange, 18 Wall. 163, 21 L.Ed. 872. The Probation Act, 18 U.S.C.A. § 724 et seq., extended this control to a subsequent term, provided it was within the probationary period; but it would be unreasonable to ascribe to the Congress an intention to grant to the courts at a subsequent term greater control over their judgments than they possessed during the term at which they were entered.
The Probation Act provides that courts of the United States, in crimes not punishable by death or life imprisonment, shall have power to suspend the imposition or execution of sentence and to place the defendant upon probation for a period not exceeding five years. If the imposition of the sentence is suspended, probation granted, and later the probation is revoked, the court may, within the probation period, impose any sentence that might originally have been imposed. The same is true where sentence has been imposed and probation granted, except that the defendant’s punishment may not be increased, for to do so is to put him in jeopardy twice for the same offense. The Probation Act must be construed in harmony with the Fifth Amendment if such construction may reasonably be made from the language employed.
In this case, when the cortrt sentenced the defendant to pay a fine of $200 and to serve two years’ imprisonment, and the fine was paid, the court lost the power to amend the prison sentence by increasing it to three years, and the Probation Act may not constitutionally be construed to authorize such amendment.
In United States v. Benz, 282 U.S., at page 307, 51 S.Ct. at page 114, 75 L.Ed. 354, the court said: “The distinction that the court during the same term may amend a sentence so as to mitigate the punishment, but not so as to increase it, is not based upon the ground that the court has lost control of the judgment in the latter case, but upon the ground that to increase the *394penalty is to subject the defendant to double punishment for the same offense in violation of the Fifth Amendment to the Constitution, which provides that no person shall ‘be subject for the same offence to be twice put in jeopardy of life or limb’. This is the basis of the decision in Ex parte Lange, supra.”
I think it was error for the court below to increase the appellant’s sentence from two years to three.