72 F.2d 271 | 2d Cir. | 1934
On December 1, 1933, the appellees’ were convicted of frauds against the Bankruptcy Act (11 USCA), and were sentenced to imprisonment in a penitentiary, Habib for two years and Mevorah for a year and a day. They forthwith appealed, and on December 5th their petition for appeal, the court’s order of allowance, their assignments of error, and the citation on appeal were filed in the office of the clerk of the District Court. On December 28th they moved for a new trial. The motion was returnable January 2, 1934, and was ordered referred to the trial judge. Thereafter on February 23d Mevorah obtained an order from the District Court allowing him to withdraw his appeal and his motion for a new trial and directing that he be delivered to the penitentiary to serve his sentence. On March 19tli Habib’s motion for a new trial came on for argument before the trial judge. Without deciding it, he gave leave to both defendants to move for reduction of sentence. Such a motion was subsequently granted by orders filed on April 30th, and modified judgments of commitment were entered on May 2, 1934.
The only question presented is whether the District Court had jurisdiction to enter the judgments reducing the appellees’ sentences. It did not. Their own appeal deprived the court below of jurisdiction to make further orders in the appealed cause. Draper v. Davis, 102 U. S. 370, 371, 26 L. Ed. 121; Keyser v. Farr, 105 U. S. 265, 266, 26 L. Ed. 1025 ; Spirou v. United States, 24 F.(2d) 796, 797 (C. C. A. 2), certiorari denied 277 U. S. 596, 48 S. Ct. 559, 72 L. Ed. 1006; United States v. Radice, 40 F.(2d) 445, 446 (C. C. A. 2); Midland Terminal Ry. Co. v. Warinner, 294 F. 185, 189 (C. C. A. 8).
The harshness with which this result will bear upon the defendants is pressed upon us, inasmuch as their appeal stayed execution of their penitentiary sentences without releasing them from custody and their imprisonment since December 1, 1933, at the federal detention headquarters will not be considered in diminution of their sentences. These considerations may well appeal to the executive branch of the government should the defendants apply for a pardon or commutation; but they can have no weight with a court. See Fels v. Snook, 30 F.(2d) 187, 188 (D. C. N. D. Ga.).
Judgments reversed.