Gallagher v. United States, 10481.

• Decision Date: 08 April 1936
• Docket Number: No. 10481.,10481.
• Citation: 82 F.2d 721
• Parties: GALLAGHER v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

82 F.2d 721 (1936)

GALLAGHER v. UNITED STATES.

No. 10481.

Circuit Court of Appeals, Eighth Circuit.

April 8, 1936.

Paul Dillon, of St. Louis, Mo., for appellant.

Harry C. Blanton, U. S. Atty., of Sikeston, Mo. (Henry G. Morris, Asst. U. S. Atty., of St. Louis, Mo., on the brief), for appellee.

Before GARDNER, VAN VALKENBURGH, and FARIS, Circuit Judges.

FARIS, Circuit Judge.

Appellant was tried and convicted on three counts of an indictment, and given as punishment concurrent sentences of five years in the federal prison for women at Alderson, W. Va. Counts 1 and 2 jointly charged her and another with passing and uttering counterfeit money, and in the third count the charge was for possessing such money.

The grounds relied on for reversal are (a) that the trial court erred in permitting a witness for the government to testify that after appellant's arrest, she refused to make any statement, except to say, "I will do my talking in court"; (b) that the court erred in permitting a witness to testify that one Jeannette Grewe, who was jointly tried with appellant, but acquitted, had passed a $1 bill, not definitely shown to be a counterfeit, on a person other than those named in the indictment; and (c) that the court erred in charging the jury that the passing of the bill last mentioned could be considered by the jury as bearing on the intent with which appellant had acted when passing the counterfeit money set out in the other counts.

We have, as an act of grace, though the point is not urged, carefully read and examined the record in the case and are fully satisfied with the sufficiency of the evidence to warrant the finding of the jury. We are met on the threshold, however, with the contention of appellee that we are not, under the law and the lately promulgated rules of the Supreme Court, permitted to examine the bill of exceptions in this case, because it was not filed within the time provided by the rules mentioned.

It goes, almost without saying, that the rules of practice and procedure in criminal cases, adopted by the Supreme Court on May 7, 1934, and which came into effect on September 1, 1934, have the force and effect of federal statutes (28 U.S.C.A. following section 723a). Lately, in a case, with which we are in full accord, it has so been held. Fewox v. United States (C.C.A.) 77 F.(2d) 699.

The rule (rule 9 28 U.S.C.A. following section 723a) invoked by appellee, as the basis of its contention, so far as is pertinent, reads thus:

"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."

Since the only alleged errors...