Barber v. United States, 5172.

Decision Date05 February 1944
Docket NumberNo. 5172.,5172.
Citation142 F.2d 805
PartiesBARBER v. UNITED STATES.
CourtU.S. Court of Appeals — Fourth Circuit

William Barber, pro se.

Carlisle W. Higgins, U. S. Atty., of Greensboro, N. C., for appellee.

Before PARKER, SOPER and DOBIE, Circuit Judges.

PARKER, Circuit Judge.

This is an appeal from an order denying a motion to vacate the judgment and sentence in a criminal case. The petitioner, William Barber, was convicted in 1937 of the crime of bank robbery in violation of 12 U.S.C.A. § 588b and was sentenced to a term of 25 years in prison. He was represented at the trial by an able and experienced lawyer and introduced evidence in support of an alibi defense, although he did not take the stand in his own behalf. In the year 1943, he filed in the court below a motion for a new trial, which was denied, and then a motion to set aside the judgment and sentence of the court on the ground that, at the time of his trial, he had been denied reasonable opportunity to prepare his defense and that a new trial should be granted him so that he might have opportunity to present additional alibi evidence that he claimed to have discovered. He asked for an order that he be brought from Alcatraz Prison to Greensboro to be present at the hearing of this motion. The court appointed counsel to present his motion, heard evidence thereon and found the facts as follows:

"A Bill of Indictment was found by the grand jury at the May term of the Wilkesboro Court by the Middle District of North Carolina, charging the defendants Coltrane, Barber, Jackson and Northcutt with the robbery of the Reidsville Bank, and they were arrested on this charge under a capias on the 19th day of May, 1937, and the defendant Barber's counsel, Mr. J. H. Scott, was furnished with a copy of this indictment promptly after its return by the grand jury at Wilkesboro, and the parties were informed that the case would be tried at the June term, 1937, of this Court at Greensboro, and the defendants and their counsel knew that the case would be tried at the June term in Greensboro.

"In the trial of the bank robbery case it developed that a Plymouth automobile was used by the robbers, which was a vehicle which had been stolen, on the 7th day of October, 1936, in Nashville, Tennessee, the bank having been robbed on October 12, 1936. This car was positively identified by the owner from Tennessee, who was cross examined in this trial and who identified Northcutt and Coltrane as the two persons who forcibly took the car from him at the point of a pistol, and he positively identified the car by the motor number. This car was identified in connection with the bank robbery by various witnesses at the scene where the crime was committed, and Mrs. Sawyer testified that she saw the defendant Barber on Saturday before the bank was robbed on Monday, pass her place at different intervals in that automobile, and on the day of the robbery, both she and her husband testified that Barber and Northcutt were in the Plymouth car and that Coltrane was following behind them in a Ford. There were other witnesses at the bank who identified Barber, as one of the three men and also identified Coltrane and Northcutt and Nettie Jackson as the woman.

"The records do not disclose that a motion was made for the continuance of the case. The defendant Barber, offered witnesses, three in number, who testified that on the morning the bank was robbed he was at the court house in Durham, North Carolina, and the feature of his motion which appeals to the Court the most, is the fact that he has three witnesses here who testified that they saw him in Durham at Court on that morning the crime was committed which tends to show that he was not at the scene of the crime at that time, but this evidence is cumulative of the evidence which was produced and there is no probable ground to believe that it would have altered the result of the trial.

"The Court gave careful consideration to the case when it was being tried, and is not now in position to say that it has any grave doubt on the question of the defendant's guilt.

"For the reasons above stated the Court is of the opinion that the motion to vacate the judgment and sentence should be denied."

The contentions on appeal resolve themselves into three points: (1) that the court below erred in not having appellant brought from prison and produced at the hearing of his motion; (2) that defendant was denied due process on the original trial of his case in that a preliminary hearing was not held and he was not allowed adequate time to prepare his defense; and (3) that a new trial should be granted because of the additional evidence produced in support of defendant's alibi, unsuccessfully asserted on the trial. There is no merit in any of these points.

Whether the motion is treated as in the nature of a petition for writ of error coram nobis under the old practice or as a motion for a new trial, it is perfectly clear that appellant had no constitutional right to be present at the hearing of the motion and cannot complain because the Court refused to order that he be brought from prison and produced at the hearing. Such a hearing is in no...

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    ...States, 154 F.2d 106, 107; cf. Pierce v. United States, 154 F.2d 848. 19 Tinkoff v. United States, 7 Cir., 129 F.2d 21; Barber v. United States, 4 Cir., 142 F.2d 805; Spaulding v. United States, 6 Cir., 155 F.2d 919; United States v. Moore, 7 Cir., 166 F.2d 102; Crowe v. United States, 4 Ci......
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