Brinlee v. United States, 73-1340.
Citation | 483 F.2d 925 |
Decision Date | 31 August 1973 |
Docket Number | No. 73-1340.,73-1340. |
Parties | Garland Rex BRINLEE, Jr., Appellant, v. UNITED STATES of America, Appellee. |
Court | United States Courts of Appeals. United States Court of Appeals (8th Circuit) |
Albert A. Wolf, Bismarck, N. D., for appellant.
Nathan G. Graham, U. S. Atty., Tulsa, Okl., for appellee.
Before VAN OOSTERHOUT and MATTHES, Senior Circuit Judges, and WEBSTER, Circuit Judge.
This case is before us on the Government's motion to dismiss defendant's timely appeal from his conviction by a jury on four counts of an indictment charging violation of 26 U.S.C. §§ 5861(d), (f), 5871, and 18 U.S.C. § 371, and the resulting sentences imposed aggregating twelve years. The motion is based upon the ground that the defendant Garland Rex Brinlee, Jr., escaped from the Oklahoma State Penitentiary where he was serving a state sentence on August 6, 1973, that he is at present a fugitive from justice. The sentences imposed in our present case are consecutive to the Oklahoma State sentence defendant is serving. Defendant through his court-appointed counsel has filed a response which does not contest defendant's status as a fugitive from justice.
In Molinaro v. New Jersey, 396 U.S. 365, 366, 90 S.Ct. 498, 498, 24 L.Ed.2d 586 (1970), the Court holds:
To like effect see Eisler v. United States, 338 U.S. 189 and 883, 69 S.Ct. 1453, 92 L.Ed. 1897 (1949); Smith v. United States, 94 U.S. 97, 24 L.Ed. 32 (1876).
In Johnson v. Laird, 432 F.2d 77, 79 (9th Cir. 1970), the court quotes from Smith, supra, as follows:
"It is clearly within our discretion to refuse to hear a criminal case in error, unless the convicted party, suing out the writ, is where he can be made to respond to any judgment we render."
And then goes on to say:
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