Barber v. United States, 5172.
Decision Date | 05 February 1944 |
Docket Number | No. 5172.,5172. |
Citation | 142 F.2d 805 |
Parties | BARBER v. UNITED STATES. |
Court | U.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.
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:
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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