(dissenting).
I cannot agree with the construction placed upon the Probation Act by the majority opinion. For many years, as noted in the Murray and Cook cases, the trial courts had been exercising the power of suspending sentences. After that power had been held to be nonexistent in Ex parte United States, 242 U.S. 27, 37 S.Ct. 72, 61 L.Ed. 129, the need for power of this nature in the District Courts was recognized and supplied by the original Probation Act. When the Act was first passed, the Supreme Court, in the Cook case, assumed its only purpose was to enable the District Courts to relieve a deserving defendant of any imprisonment and the stigma that attached to imprisonment.1 Upon that assumption the court concluded that imprisonment being imposed and commenced, the Probation Act did not contemplate any further control of a defendant by the courts. But that concept of the purpose and utilization of the Act was soon dispelled. The Act, being remedial in nature and obviously intended to give trial' courts broad discretionary powers, was properly liberally construed to that end. Trial courts assumed that they had the power to impose a sentence of imprisonment on one count or charge and suspend sentence on another. That assumption was general, if not universal. Congress recognized its propriety when, in the general revision in 1948, it inserted the provision in § 3651 — “Probation may be limited to one or more counts or indictments”. Thus the severability of consecutive sentences was firmly established, in contrast to the concept of the Cook case where the court treated all as one for the purposes of that case. In that case the question posed here was not reached. The court simply assumed that the purpose of the Probation Act was served when the trial court suspended or refused to suspend all sentences, and its function being at an end, the executive power became exclusive.
Now we give to the Act a narrow and strict construction by which the power of the trial courts is limited to granting probation in the first instance or not at all. On first impression it might appear that the retention of such power is not important. But that is not so. Experience of the trial courts in the enlightened administration of criminal jurisprudence has demonstrated that much value may be obtained from the knowledge of how a defendant reacts to the rehabilitation efforts of the penal authorities during confinement. Consequently, the practice has been widely followed of imposing separate sentences of imprisonment on separate counts or charges and then, in the light of developments later, suspending a subsequent sentence or sentences not yet commenced, if such action is merited. Thus the risk of mistakes in the difficult task of properly measuring the defendant’s worth is minimized. The danger of granting probation in a doubtful case and having the defendant later commit another offense while on probation is lessened. The danger of requiring a long term of imprisonment, when the character of the defendant is disclosed to be such that a much shorter one is adequate, is reduced. The humanitarian objective of the Probation Act has thereby been utilized and advanced.
And the good time allowance section of the Code has not been abrogated nor *337has it been any obstacle to the practice. When a subsequent sentence is suspended by the court, the simple mandatory mathematical calculation is made by the penal authorities upon the basis of the shorter total period of confinement. That has been going on for years. The good time statute is only a mandatory yardstick given the penal authorities for making a simple calculation. It is not a limitation on the power of the courts. The courts are not usurping the authority of the executive branch when they perform the function of determining whether probation should be granted.
It is suggested that the revisers of Title 18 of the Code did not intend that the functions of the judiciary relating to probation should overlap or conflict with the functions of the executive branch of the government with reference to custody and good time. The inference appears to be that from the revision should be read into the law a purpose to limit the long-established practice of pronouncing separate sentences for the purpose of reserving jurisdiction to suspend one or more later if the facts warrant. But, as stated in Kelley v. United States, 10 Cir., 209 F.2d 638, 639, wherever a substantive change was intended by the revision, the reviser’s notes so indicate. The reviser’s notes indicate that there was no intention to change the power of the courts to suspend sentence and grant probation at any time before the service of the sentence begins. Kirk v. United States, 9 Cir., 185 F.2d 185; Kelley v. United States, supra. Hence, the crux of the present question is whether sentences which are separate and distinct at the time of original sentence automatically and irrevocably become one indivisible general sentence immediately upon the commencement of the service of the first. Or, as stated in the majority opinion, do the sentences, conceded to be separate and several at the time of imposition for purposes of probation, become “for purposes of custody, the exact equivalent of a general sentence of imprisonment for the same number of years” ? To warrant that assumption it is necessary to assume that the power of probation is abruptly and automatically shut off by incarceration on an antecedent sentence and custody is the only remaining function to be performed. That assumption is not sound, yet it is made the ground for denying any remaining power in the courts over sentences not yet begun. That, of course, is the exact purpose and effect of the majority opinion. But it seems to me that to give the Act such a narrow construction is unwarranted and not consistent with recognized rules of statutory construction of remedial legislation.
And if it be said that the retention of the power later to suspend a sentence, the execution of which has not yet begun, will cause harassment of the District Courts, the answer is that those courts may, in a case free from doubt as to the proper duration of imprisonment, impose a general sentence on all counts and forever bar any application for suspension and probation as to any part after its service has begun. But if the court is in doubt, and that must inevitably be the case in many instances, it should have the power, as it has been done in the past, to pronounce separate sentences of imprisonment and thereby reserve the power later to suspend one or more, the service of which has not yet begun. In the latter cases the District Courts have the absolute discretion to, hear or not to hear applications for probation with or without the presence of the defendant. And their refusal or consent to do so, and their action in granting or refusing to grant probation on the merits of each case, are not subject to appellate compulsion or review. United States ex rel. Checa v. Williams, 5 Cir., 12 F.2d 65.
The original Probation Act by implication and the amended Act explicitly give the power to the courts to pronounce separate sentences. Under the original Act, the power and jurisdiction of the courts over probation extend to the time of the beginning of the execution of the several sentences. That power is not changed by the revision. Pro*338bation is by statute a judicial, not an executive function. There is nothing in the original Act or the revised Code which indicates a legislative intent automatically to divest the courts of jurisdiction over probation as to a sentence not commenced, when the custody of a defendant is vested in the executive on another sentence. And there is nothing in the Code which requires a merger of all sentences into one and a figurative transfer of jurisdiction over probation from the courts to the penal authorities as to sentences not yet commenced. In my opinion the majority opinion does that, without legislative sanction.
I would remand the case to the District Court in order that that court which entered the judgment, may, in the light of its power to entertain the application for probation, hear or not hear, grant or not grant the application, as the informed judgment of that competent court dictates.
. “The great desideratum [of the Probation Act] 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.” 275 U.S. 347, 357, 48 S.Ct. 146, 149.