*1 908 this, equally we
Since we cannot believe of
cannot believe the New York Court
Appeals could believe it. We to our affirmance therefore adhere grant-
of the order of thе District Court ing summary defendant’s motion for judgment. Washington, Wadden, Jr., Thomas A. (Albert City, Krieger, D. C. J. York New counsel), petitioner.
оf for Tendy, Atty., William M. Asst. U. S. Y., City (Robert S. D. N. New York Morgenthau, Atty., Y., M. U. S. S. D. N. City, New brief), York on the for re- spondent. CLARK, HINCKS, America, Before and UNITED STATES of Respondent-Appellee, Judges. WATERMAN, Circuit v. PER CURIAM. GALENTE, Carmine Petitioner- May 15, On 1961 Hon. Richard H. Appellant. Levet, Judge a of the United States Dis- No. 26960. trict Court for the Southern of District Appeals United States Court of York, New petitioner, sentenced Carmine Second Circuit. Galente, imprisonment contempt to for a Argued May 23, Motion of pres- 1961. сourt committed in in court the sentencing judge ence of the on an ear- 1, 1961. DecidedJune day during lier a in trial which Galente
was one of several
The
defendants.
period
twenty days,
sentence was for a
of
imprisonment
begin
the
to
forthwith.
day
Judge
applied
On that
Galente
to
pending
appeal
for
Levet
bail
an
tо the
Appeals.
application
Court of
This
was
May
appeal
denied. On
18 a
of
notice
day рetitioner
filed
was
and on that
exe-
petition
cuted a
to us for such bail.
hearing
The motion came оn for
on
May
argued
fully
upon
23
sup-
and was
porting
opposing
and
Clark,
Judge,
affidavits. From
Circuit
dissented.
appеal
these affidavits it is clear that the
also,
See,
Rule
and United
v.
States
Brown, Cir.,
332,
2
247 F.2d
359
affirmed
41,
539,
79
U.S.
S.Ct.
be,” and that a shows is fer after decision of primarily granted Appeal may in cases where the the District Court of be tak- approval Supreme Court modifies either the result en as an of the cоnclusion reasoning reached, necessarily To the below. Hear or Not or there but not of all reasoning opin- Question A for the California to Hear: of the contained in that Court, 243, Eisenberg Superior Supremе Court, 1924, 3 L.Rev. Stanford v. ion.” Supreme (1951). 578, 575, 618; 617, The California 193 Cal. 247 226 P. see 1955, Rush, 345, also Cole v. 45 Cal.2d of itself has said that “The order Court 350, 450, 453, 289 P.2d denying petition 54 A.L.R.2d a 1137. a for trans- tnis court
909 only Judge (dissenting). occurring and the one the before CLARK, Circuit present аffair was another emotional Cir., Levine, 288 2 v. In United States leading apology comment judge. to an to the tаking of the court, note 272, this F.2d might appeal A full on record de- Supreme in Court of the concern obvious background velop peremp- a so that the meting out of as the to decisions recent tory jail of аn sentence—-instead initial contempt findings on of prison sentences justified. appear fine—would As it by jury, con- or trial indictment without stands, hasty however, this action on our responsi- duty and had it the that cluded bility part questions raises more than it settles. reviewing on sentences such of in conspir- a reduction ordered Judicial of a appeal. it control massive And acy imposed. presents Here ulti- trial one of the there most diffiсult the sentence mately challenging con- may presented the both and well affirm tasks to a trial we calling judge, of adjudication the sentence tempt and does rare as it for a com- at how imprisonment; patience. not see but I do bination of firmness and I do appeal suggest juncture hold the we can not thаt these tests were not this clearly deny de- here, the vindication, and thus met but I believe our frivolous opportunity judicious any meaningful, to substantial to be and must fendant yield I issue. on either present come on careful review of a full his case record uphold the my summary upon to and in desire not no and ill-informed to one engaged actually in yet obligation dignity There of the courts action. is more for justice. But this here administration of disintеrested review because of the the appointed court by long delay the of the precipitate action collateral factors in shutting appeal not is penalty all off and review action ultimate severe im- of up- of my judgment posed hearing, suggesting method pos- a sound in without a holding dignity. sibly judicial punitive, judicial, rather than ac- justified by prior provocation. tion unless have us What we before in affidavit justice I thаt believe in to the court as obviously segment only form is a small of much as to the defendant the latter should longer story. appears much It a thus granted oppor- reasonable bail and an be tunity 1961, 20, on March that after four present appeal orderly his to in large conspiracy months of a narcotics cоurse. trial the an defendant made emotional against a outburst directed conference of by judge called counsel the at the bench hearing jury, of out of the and demand- every- jury ed that the be allowed to hear thing. appear It not does that this dis- progress trial; turbed the nor the of did judge the it other take note оf than to OLIVERIUS, Plaintiff-Appellant, James say enough that had “I he heard and will v. duly note And thus this.” the matter PENNSYLVANIA RAILROAD COMPA Nearly quickly later, ended. two months Pennsylvania NY, corporation, a May 1961, 15, on when a mistrial became Defendant-Appellеe. necessary qualified for lack of twelve No. 13111. jurors, judge the the called defendant Appeals Cоurt United States of him, peremptorily
before sentenced him Seventh Circuit. imprisonment twenty to immediate for 1,May days, 1961. appeal and him bail on then denied say anything and refused to him hear Rehearing 27, Denied June 1961. his The the in behalf. affidavit of As- says Attorney sistant United States now guilty that defendant had been of other outbursts, but not like these were noted finding contempt judge’s
in the certificate