Forte v. United States

• Decision Date: 06 December 1937
• Docket Number: No. 459,459
• Citation: 302 U.S. 220,58 S.Ct. 180,82 L.Ed. 209
• Parties: FORTE v. UNITED STATES
• Court: U.S. Supreme Court

302 U.S. 220

58 S.Ct. 180

82 L.Ed. 209

FORTE

v UNITED STATES.

No. 459.

Argued Nov. 15, 1937.

Decided Dec. 6, 1937.

Mr. James A. O'Shea, of Washington, D.C., for plaintiff.

Mr. Homer S. Cummings, Atty. Gen., and Mr. Henry A. Schweinhaut, of Washington, D.C., for the United States.

PER CURIAM.

The case comes here on certified questions. 28 U.S.C. § 346 (28 U.S.C.A. § 346).

Appellant was indicted for violation of the National Motor Vehicle Theft Act, 41 Stat. 324, 18 U.S.C. § 408 (18 U.S.C.A. § 408). He was convicted, sentenced, and on July 1, 1936, in due time, took an appeal. On July 20, 1936, he filed an assignment of errors and a designation of record. On that date, he also submitted a bill of exceptions by filing it, not signed by the trial judge, with the clerk of the court. At the same time, he gave notice of that filing to the United States Attorney stating that he would submit the bill of exceptions for settlement. Prior to July 31, 1936, the bill of exceptions was 'agreed upon' by the United States Attorney and appellant's counsel. On July 31, 1936, the trial judge was on vacation outside the District and was not to return until September. He signed the bill of exceptions on September 2, 1936. Below his signature appeared the statement, 'The foregoing bill of exceptions is satisfactory to the Government and the defendant,' signed by the attorneys for both parties. There was no extension of time for the settlement of the bill of exceptions which, together with the assignment of errors, was transmitted to the clerk of the Court of Appeals on September 9, 1936. Argument was had in due course, and on April 5, 1937, the Court of Appeals (68 App.D.C. 111, 94 F.2d 236) decided that the judgment of the District Court should be reversed. The errors assigned and argued on the appeal involved solely the sufficiency of the evidence as shown by the bill of exceptions.

The Court of Appeals granted a motion by the government to stay the mandate and also a motion for rehearing 'limited to the legal effect of the settlement of the bill of exceptions on September 2, 1936, the appeal having been perfected on July 1, 1936.' The government moved that the bill of exceptions be stricken and the judgment of the District Court be affirmed. The Court of Appeals has certified the following questions:

'1. When, in a criminal case, a bill of exceptions has, within thirty days after the taking of an appeal, been prepared, agreed to by counsel for the United States and the appellant, and 'submitted' by filing the same with the clerk of the District Court, but when the trial judge does not settle and sign the bill within said thirty days, but does settle and sign the same thereafter, is the bill of exceptions properly settled and signed?

'If question No. 1 is answered in the negative, then:

'2. When, in a criminal case, a bill of exceptions not settled and signed by the trial judge within proper time, but nevertheless actually settled and signed by said judge, is transmitted by the clerk of the District Court to the clerk of the Court of Appeals, together with the assignment of errors and other pertinent papers, and when the Court of Appeals hears the appeal upon errors assigned and argued involving solely the sufficiency of the evidence to sustain a verdict of guilty, and adjudges that the judgment of the District Court be reversed, and when throughout the appeal the United States raises no question as to the validity of the bill of exceptions and when question as to the validity of the bill of exceptions is for the first time raised upon petition for rehearing by the United States, and when on rehearing granted motion is made by the United States to strike the bill of exceptions, must the bill of exceptions be stricken?

'If question No. 2 is answered in the affirmative, then

'3. When, in a criminal case, the validity of the bill of exceptions is for the first time raised on petition for rehearing by the United States after the case has been heard and reversed on appeal upon errors involving solely the sufficiency of the evidence to sustain a verdict of...