Gilmore v. United States, 2389.

• Decision Date: 02 January 1942
• Docket Number: No. 2389.,2389.
• Citation: 124 F.2d 537
• Parties: GILMORE v. UNITED STATES.
• Court: U.S. Court of Appeals — Tenth Circuit

124 F.2d 537 (1942)

GILMORE v. UNITED STATES.

No. 2389.

Circuit Court of Appeals, Tenth Circuit.

January 2, 1942.

Robert D. Ellis, of Denver, Colo., for appellant.

Cleon A. Summers, U. S. Atty., of Muskogee, Okl., for appellee.

Before PHILLIPS, BRATTON, and MURRAH, Circuit Judges.

BRATTON, Circuit Judge.

In October, 1935, two indictments were returned in the United States Court for Eastern Oklahoma. One, containing two counts, was against Dewey Gilmore, Russell Land Cooper, Leo O'Malley, alias Irish, Leonard Short, and Jack Miller, alias J. J. Miller. The first count charged that on or about December 22, 1934, the defendants did, by force and violence and by putting in fear certain named officers and employees of the Okemah National Bank, of Okemah, Oklahoma, take from such persons and in their presence $13,186 in money belonging to the bank; and the second count charged that the defendants did, by putting in jeopardy the lives of such officers and employees, take the money from the bank. The second indictment was against Dan T. Heady, Virgil Melton, alias Red, Fred Reese, and Jack Miller, alias J. J. Miller. It also contained two counts and was substantially identical in substance with the first indictment except that it charged the taking on the same day of $5,491.25 from the First National Bank of Okemah. The two cases were tried separately in November, 1935. In one Gilmore and Cooper were found guilty on both counts of the indictment, and Short was found guilty on the first and not guilty on the second; and in the other Heady was found guilty on both counts. Both cases were continued to December 9 for sentence, and on that day Gilmore and Cooper were each sentenced to imprisonment for twenty years on the first count and for twenty-five years on the second, with provision that the sentences should run concurrently.

In January, 1936, the indictment in this cause was returned in the same court against Gilmore and Cooper. It charged in substantially identical language the substance of each and both of the earlier indictments. And, it further charged that the former indictments were returned and the cases tried; that Gilmore, Cooper, Short, and Heady were found guilty as indicated; that on motion of the defendants and by agreement the cases were continued until December 9, 1935, for sentence; that on December 3, while confined in the city jail at Muskogee, Oklahoma, under an order of commitment by the court, awaiting sentence, and while in the custody of the United States Marshal and the chief of police of Muskogee who was in charge of such jail, Gilmore and Cooper, in freeing and attempting to free themselves and Short and Heady from such custody and confinement for the offense of robbery of a national bank, shot and fatally wounded Ben Bolton, chief of detectives of Muskogee, who was assisting the chief of police in detaining and safekeeping such prisoners. Each defendant was found guilty and was sentenced to a term of ninety-nine years in the penitentiary, with provision that the sentence should run concurrently with that imposed in the former case. Gilmore filed a motion to vacate the judgment and sentence; the motion was denied; and the appeal is from the order of denial.

The Government advances the preliminary contention that the trial court was without jurisdiction to consider the motion for the reason that it was filed after the expiration of the term at which the judgment was entered, and that therefore the appeal should be dismissed. It is a familiar general rule that in the absence of a statute providing otherwise, a court cannot alter or set aside its final judgment after the expiration of the term at which it was entered, unless the proceeding for that purpose was appropriately initiated during that term. United States v. Mayer, 235 U.S. 55, 35 S.Ct. 16, 59 L.Ed. 129. But in the recent case of Holiday v. Johnston, 313 U.S. 342, 61 S.Ct. 1015, 85 L.Ed. 1392, it was sought to present in a proceeding in habeas corpus the contention that two sentences had been erroneously imposed for a single offense. It is fairly apparent that there the term at which the sentences were imposed had long since adjourned. Yet it was held that the remedy was to apply for the vacation of the sentence and a resentence in conformity to the statute under which the accused was convicted. That case is controlling here.

It is further contended that the appeal should be dismissed because it was not taken within the time prescribed by Rule III, Rules of Practice and Procedure in Criminal Cases, 18 U.S.C.A. following section 688, 292 U.S. 661, 54 S.Ct. xxxvii. The order denying the motion was entered on August 4, 1941, and the notice of appeal was filed fifteen days later. Section 1 of the Act of March 8, 1934, 48 Stat. 399, 18 U.S.C.A. § 688, empowers the Supreme Court to prescribe rules of practice and procedure with respect to proceedings in criminal cases after verdict; section 2 provides that the right of appeal shall continue in those cases in which appeals were then authorized by law, but that rules may be prescribed governing the time and manner of taking such appeals; and Rule III, supra, provides that an appeal shall be taken within five days after entry of judgment of conviction, except that where a motion for new trial has been made, the appeal may be taken within five days after the denial of such motion, and that the appeal shall be taken by filing with the clerk of the trial court a notice to that effect. That rule applies to the taking of an appeal from a judgment of conviction. This is an appeal from an order denying a motion to vacate the judgment of conviction. The rule has no application here. Meyers v. United States, 5 Cir., 116 F.2d 601.

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