Fewox v. United States, 7644.
| Decision Date | 20 May 1935 |
| Docket Number | No. 7644.,7644. |
| Citation | 77 F.2d 699 |
| Parties | FEWOX v. UNITED STATES. |
| Court | U.S. Court of Appeals — Fifth Circuit |
W. K. Zewadski, Jr., and Wm. C. Pierce, both of Tampa, Fla., for appellant.
John W. Holland, U. S. Atty., of Jacksonville, Fla.
Before FOSTER, SIBLEY, and HUTCHESON, Circuit Judges.
Fewox was convicted on November 27, 1934, of offenses against the internal revenue laws. An ordinary motion for new trial was made the next day. It was overruled, and he was sentenced on December 5th. On December 14th an extraordinary motion for new trial on the ground of newly discovered evidence was filed. This was heard and overruled on December 17th, and on the same day a notice of appeal was filed. On January 16, 1935, the District Court extended the time for settling the bill of exceptions until February 15th, and on February 7th a bill of exceptions was certified covering both the trial and the proceedings upon the extraordinary motion. The assignments of error run both to the rulings at the trial and to the judgment on this extraordinary motion. The United States moved to dismiss the appeal because not taken within five days from the entry of the judgment of conviction. Fewox contends that, since the appeal was taken within 5 days from the overruling of his extraordinary motion and since that motion was filed within 60 days from the verdict as allowed by the new rules, the appeal was good.
The controlling provisions read thus:
A main purpose of the rules is to force early termination of criminal cases. Section 2 of the statute authorizing them, 48 Stat. 399 (28 USCA § 723a), preserves the former right of appeal, but permits regulation of the time and manner of asserting it. The time limits fixed by the rules are jurisdictional...
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...the judgment of conviction may be taken within five days from the date of denial. If the holding of the Fifth Circuit in Fewox v. United States, 77 F.2d 699, 700, be to the contrary, we In this case the motion filed was based upon matters stated in the affidavit of appellant. Appellee conte......
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...See Ray v. United States, 301 U.S. 158, 57 S.Ct. 700, 81 L.Ed. 976; Mookini v. United States, 58 S.Ct. 543, 82 L.Ed. ___; Fewox v. United States, 5 Cir., 77 F.2d 699; Gallagher v. United States, 8 Cir., 82 F.2d 721; Wolpa v. United States, 8 Cir., 84 F.2d 829; Flowers v. United States, 8 Ci......
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