86 F.2d 911 | 5th Cir. | 1936
An indictment in seven counts was returned against appellants, George La Belle and George Billis, together with Anthony Ahedo, alias Harry Jackson, and Lester Davis. The first count charged all of them with conspiring to violate the Harrison Narcotic Act (38 Stat. 785, as amended). The other counts charged Billis with substantive offenses under the said act but did not so charge La Belle. Ahedo was a fugitive, and the other three defendants were put on trial together. A motion to direct a verdict of acquittal was granted in favor of Davis but was denied as to appellants. A verdict of guilty was returned as to those two and a general sentence of two years’ imprisonment and a fine of $1,000 was imposed on each. Error is assigned to the overruling of the motion for verdict.
We will not stop to review the evidence. It is sufficient to say that there was enough before the jury to sustain the conviction on the first count charging conspiracy. Since conviction on that count will support the sentence, it is unnecessary to discuss the other counts. Other errors assigned are without merit.
Judgment was entered on February 24, 1936, and notice of appeal was given the same day. Extensions for preparing the bill of exceptions were granted and the record was not filed jn this court until June 13,
Rule 2 (3) of the Rules of Practice and Procedure in Criminal Cases, promulgated by the Supreme Court May 7, 1934 (28 U.S.C.A. following section 723 a), by authority of the Act of March 8, 1934 (28 U.S. C.A. § 723 a), provides as follows: “A motion for a new trial solely upon the ground of newly-discovered evidence may be made within sixty (60) days after final judgment, without regard to the expiration of the term at which judgment was rendered, unless an appeal has been taken and in that event the trial court may entertain the motion only on remand of the case by the appellate court for that purpose, and such remand may be made at any time before final judgment.”
The purpose of adopting the new rules was to avoid delay in the final determination of criminal cases. To permit a convicted person to unduly delay the ultimate punishment is not tempering justice with mercy. In most cases it would be better for him to begin serving his sentence promptly and get through with it. It is not unusual for a codefendant in a criminal case to endeavor to take all the blame or to attempt to exonerate one or more of the defendants. His evidence to that effect is of a very weak character and rarely effective. To remand a case for the purpose of allowing the trial court to consider an application for a new trial would greatly delay the ultimate decision in the case and the ex parte affidavit of a confessed offender is hardly sufficient to justify that procedure.
Before the adoption of the new rule this court had been required to consider a number of applications to remand criminal cases after appeal for the purpose of permitting the District Court to consider motions for new trials based on the ground of newly discovered evidence. In Perry v. U. S., 39 F.(2d) 52, 55, decided March 21, 1930, we endeavored to. formulate a rule of practice in respect of such applications. In that case we had occasion to say: “A proper method to pursue in cases of this kind would be for counsel for the convicted parties, immediately after it is made known to them that a witness has been guilty of perjury, or that new evidence, that could not have been secured by reasonable diligence at the time of the trial, has been discovered, to apply to this court for an order for leave to take the testimony contradictorily with the United States before the District Judge. We wish to announce that in future, unless that method is adopted, applications such as that now before us will not be considered, unless the good faith of the petitioner is conclusively shown.”
The procedure pointed out in Perry v. U. S., supra, was not followed in this case, and the affidavit supporting the motion to remand is not persuasive. The identification of Billis by the witnesses in the trial was satisfactory and there is little likelihood thal
The record presents no reversible error.
Affirmed.