Cusamano v. United States, 10496.

• Decision Date: 03 August 1936
• Docket Number: No. 10496.,10496.
• Citation: 85 F.2d 132
• Parties: CUSAMANO v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

85 F.2d 132 (1936)

CUSAMANO v. UNITED STATES.

No. 10496.

Circuit Court of Appeals, Eighth Circuit.

August 3, 1936.

George C. Dyer and Henry A. Freytag, both of St. Louis, Mo., for appellant.

Harry C. Blanton, U. S. Atty., of Sikeston, Mo. (Arthur A. Hapke, Asst. U. S. Atty., of St. Louis, Mo., on the brief), for the United States.

Before GARDNER, WOODROUGH, and THOMAS, Circuit Judges.

WOODROUGH, Circuit Judge.

Joe Cusamano was convicted of violations of the internal revenue laws and has prosecuted this appeal to reverse the judgment. His points argued and relied on are that the evidence, consisting of still, mash, and equipment, was obtained by unlawful search and that certain remarks of counsel for the government to the jury amounted to misconduct. But it is presented for the government that the bill of exceptions and assignments of error appearing in the record cannot be considered by this court because they were not filed within the time limits fixed by rule 9 of the Rules of the Supreme Court regulating procedure in appeals of criminal cases (28 U.S.C.A. following section 723a).

It appears that appellant was convicted on November 14, 1935, was sentenced on November 15, 1935, and thereupon gave notice of intention to appeal to this court; the appeal being docketed here November 16, 1935. On November 16, 1935, the trial court made an order directing the appellant to appear on December 16, 1935, for such directions as may be appropriate with respect to the preparation of the record on appeal, including directions as to the time for the filing of assignments of error and as to the preparation and filing of the bill of exceptions and the settlement of the same by the trial judge. On December 16, 1935, the appellant requested, and the trial court granted, thirty days from that date within which to file the bill of exceptions and assignments of error. On January 15, 1936, a similar order was entered extending the time to January 22, 1936, and on that day appellant's bill of exceptions was approved by the trial judge, and the bill of exceptions, together with the assignments of error, were filed with the clerk.

Rule 9 provides: "Bill of Exceptions. In cases other than those described in Rule VIII, the appellant, within thirty (30) days after the taking of the appeal, or within such further time as within said period of thirty days may be fixed by the trial judge, shall procure to be settled, and shall file with the clerk of the court in which the case was tried, a bill of exceptions setting forth the proceedings upon which the appellant wishes to rely in addition to those shown by the clerk's record as described in Rule VIII. Within the same time, the appellant shall file with the clerk of the trial court an assignment of the errors of which appellant complains. The bill of exceptions shall be settled by the trial judge as promptly as possible, and he shall give no extension of time that is not required in the interest of justice."

It is apparent from the record that the bill of exceptions in this case was not "procured to be settled" or "filed with the clerk of the court" "within thirty days after the taking of the appeal" or within any further time determined upon and fixed within the thirty-day period by the trial judge. Likewise as to the assignment of errors, they were not filed with the clerk of the court ...