was prompted by an intent to defeat or evade the tax imposed on either the defendant or his partners. The record is devoid of any evidence that this omission was ultimately reflected in an understatement of income in the return of either the defendant or his partners. It cannot be inferred, in the absence of such evidence, that the partnership return was fraudulently made, with intent to defeat or evade the assessment of a tax imposed by the statute.
The second charge urged against the defendant rests on the same proof. It is contended that the failure of the defendant to make full and true entry of the said transactions in books of the partnership was a violation of the laws of Pennsylvania. There is, however, no proof that this failure was prompted by an 'intent to defraud,' an essential element to the offense defined in the statute.
The partners had full knowledge of the transactions, and there is no suggestion that others were, or could be, affected by their omission from the books of account
The evidence, considered in its entirety and properly evaluated, will not sustain a finding that defendant was guilty of any of the charges or of conduct violative of the conditions of his probation. The evidence, as it now stands, will not sustain an inference consistent with guilt and inconsistent with innocence, the standard which must be applied in the evaluation of the evidence. The doubt engendered by either the proof or the absence of it must be resolved in favor of the defendant.
The Probation Act
invests the court with the power '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 (it) may deem best,' when 'the ends of justice and the best interests of the public, as well as the defendant, will be subserved thereby.' The power of the court to 'revoke or modify any condition of probation' is equally coextensive and is limited only by the same criteria.
'There is no suggestion in the statute that the scope of the discretion conferred for the purpose of making the grant is narrowed in providing for its modification or revocation. The authority for the latter purpose immediately follows that given for the former, and is in terms equally broad. * * * No criteria for modification or revocation are suggested which are in addition to, or different from, those which pertain to the original grant. The question in both cases is whether the court is satisfied that its action will subserve the ends of justice and the best interests of both the public and the defendant. The only limitation and this applies to both the grant and any modification of it, is that the total period of probation shall not exceed five years.' Burns v. United States, 287 U.S. 216, 221, 53 S. Ct. 154, 156, 77 L. Ed. 266.
It is not to be assumed, however, that this discretionary power is so free of limitation as to vest in the court the right to do as it pleases. The power is circumscribed by the most binding of limitations, those imposed by a right conscience responsive to moral obligations and principles of justice. Its exercise implies conscientious judgment, not arbitrary action. 'It takes account of the law and the particular circumstances of the case and is 'directed by the reason and conscience of the judge to a just result.' * * * While probation is a matter of grace, the probationer is entitled to fair treatment, and is not to be made the victim of whim or caprice.' Burns v. United States, supra, 287 U.S.at page 223, 53 S. Ct.at page 156, 77 L. Ed. 266.
The original judgment in this case, to wit, the suspending of the imposition of sentence and the placing of the defendant on probation, was entered by another judge. It is not within my power to revoke or modify that judgment, except as provided by statute, even though I, on the same evidence, but guided by the principles hereinabove stated, might have pursued a different course and arrived at a different result.
The warrant on which the defendant was arraigned is quashed and these proceedings are dismissed.