Ray v. United States

• Decision Date: 18 June 1952
• Docket Number: No. 14494.,14494.
• Citation: 197 F.2d 268
• Parties: RAY v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

197 F.2d 268 (1952)

RAY v. UNITED STATES.

No. 14494.

United States Court of Appeals Eighth Circuit.

June 18, 1952.

George C. Willson, III, St. Louis, Mo. (appointed by the Court), for appellant.

James T. Gooch, U. S. Atty., Little Rock, Ark. (Gerland P. Patten and W. H. Gregory, Asst. U. S. Attys., Little Rock, Ark., on the brief), for appellee.

Before SANBORN, WOODROUGH, and RIDDICK, Circuit Judges.

SANBORN, Circuit Judge.

This is an appeal from an order of September 21, 1951, dismissing the defendant's (appellant's) motion to vacate concurrent sentences of five years' imprisonment imposed by the District Court on October 20, 1949.

The defendant was indicted by a grand jury on September 6, 1949. The indictment contained two counts. The first count charged that on or about April 9, 1949, at Little Rock, Arkansas, the defendant forged the endorsement on a United States Treasury check for $138.00 issued on November 30, 1948, to Frederick Earl Funston, as payee, this for the purpose of defrauding the United States and the payee of the check, in violation of 18 U.S.C. § 494. The second count charged the uttering by the defendant of the check at the same time and place with the intent to defraud the United States and in violation of the same statute. A jury, on October 20, 1949, found the defendant guilty of both offenses. He was sentenced to five years' imprisonment on each count, the sentences to run concurrently. He entered upon the execution of his sentence on November 1, 1949.

Apparently the first attack made by the defendant upon his sentence was on March 21, 1950, when he filed a motion for vacation of the sentence. He asserted that at the trial he had testified that Funston, the payee of the check, had given it to him (the defendant) to cash; that there was no testimony except that of Funston that he had not given the defendant the check to cash; and that Funston's testimony had been shown to be false in several respects. The defendant also asserted that during the trial Funston, while under cross-examination, ignored questions of defense counsel and tried to talk to the jury, and during recess was seen by the defendant and others talking to three jurors. The United States Attorney on March 17, 1950, filed a motion to dismiss the defendant's motion on the ground that it furnished no justification for vacating the sentence. On March 23, 1950, the defendant's motion was heard and denied. Whether he was represented by counsel at the hearing, the record does not show.

On February 7, 1951, the defendant filed another motion to vacate his sentence upon the ground that the "star witness for the Government," Fred E. Funston, was a mental patient at the Veterans Administration Hospital, North Little Rock, Arkansas, who had not been discharged as competent and sane and who was incompetent to testify at the trial of the defendant. The United States Attorney, on February 7, 1951, moved to dismiss this motion of the defendant upon the ground that it failed to state facts upon which relief could be granted.

On February 19, 1951, the defendant filed what he entitled "Addendum Traverse," in which he asserted his right to be present and be heard upon his motion and asked the court to dismiss the United States Attorney's motion to dismiss, and to grant a new trial. The United States Attorney on March 21, 1951, filed an amendment to his motion to dismiss the defendant's motion to vacate sentence. He asserted as an additional ground for a dismissal that on March 23, 1950, the court, after a hearing at which the defendant was represented by counsel, had denied a similar previous motion. Counsel for the Government also asserted that Funston was a competent witness at the trial.

The record shows that the motion of the defendant filed on February 7, 1951, was heard on March 22, 1951; that the defendant, while not present, was represented by counsel appointed by the court; and that, after argument of counsel, the motion of the Government to dismiss was sustained. The order of the court was filed March 31, 1951. The court ruled that the reasons urged by the defendant in his motion of February 7, 1951, should have been presented at the hearing on his first motion to vacate sentence. The court also ruled that the defendant's assertions as to the mental condition of the witness Funston related to his credibility and not his competency, that the jury believed his evidence, and that the court had observed nothing which would have made the witness' testimony incompetent.

The court on April 6, 1951, denied the defendant leave to appeal in forma pauperis from the order of March 31, 1951, on the ground that his proposed appeal was frivolous and not taken in good faith. The defendant took no appeal from the order of March 31, 1951.

On September 10, 1951, the defendant filed his third motion to vacate his sentence and for a new trial, on the ground of the alleged incompetency of Frederick E. Funston to testify, and upon the further ground that the defendant had been denied the effective assistance of counsel at his trial.

In his motion the defendant stated that he entered a plea of not guilty on September 19, 1949; that the court then appointed Mr. Sheppard to represent him; that the defendant was in the county jail; that on October 10, 1949, he was notified that his trial was set for October 17, 1949; that Mr. Sheppard talked with the defendant for about five minutes before the trial date; that Sheppard had not subpoenaed the list of defense witnesses furnished him by the defendant and had not prepared the case for trial; that the defendant on ...