Semel v. United States, 11742.

• Decision Date: 18 October 1946
• Docket Number: No. 11742.,11742.
• Citation: 158 F.2d 229
• Parties: SEMEL et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

158 F.2d 229 (1946)

SEMEL et al. v. UNITED STATES.

No. 11742.

Circuit Court of Appeals, Fifth Circuit.

October 18, 1946.

Joseph Lawrence, of Washington, D. C., and Louis Halle, of New York City, Jacob H. Morrison, of New Orleans, La., and

Harvey G. Fields, of Farmerville, La., for petitioners.

Malcolm E. Lafargue, U. S. Atty., of Shreveport, La., for respondent.

Before SIBLEY, HUTCHESON and McCORD, Circuit Judges.

SIBLEY, Circuit Judge.

This case presents questions of the application of the new Rules of Criminal Procedure in federal courts, which became effective in March, 1946, to an indictment returned in October, 1945, and to the review in this court of a refusal on June 26, 1946, by the district judge to transfer the case for trial to the District Court for the Southern District of New York under Rule 21(b).¹

The proceeding in this court is a petition by the defendants addressed to the judges of this court accompanied by affidavits and uncertified copies of the indictment, the motion to transfer made in the district court with the affidavits there presented to show the justice of the transfer, the order refusing the transfer on June 26, 1946, and an extract from the minutes of July 2, which shows that on that date the defendants filed a notice of appeal, that there was a hearing on the allowance of an appeal, that the court ordered that the appeal be denied, but the trial of the case was postponed till Oct. 14, 1946, "to give the defendants time to apply to the Circuit Court of Appeals for an appeal." The specific prayer of the petition now before us is, that the United States Attorney for the Western District of Louisiana be directed to show cause why the defendants "should not be allowed to file their appeal from the ruling made by the judge of the United States District Court for the Western District of Louisiana denying their motion to transfer." The United States Attorney, without being cited, has appeared, and argues that an appeal should not be allowed because the order complained of is not appealable since it is not a final judgment in the case, and since it rests wholly in the discretion of the trial judge. He presents a transcript certified by the official reporter showing that the district judge denied an appeal for that reason.

Counsel and the district judge seem to assume that an appeal in a criminal case must be allowed by the trial judge or a judge of this court, in order that it may be initiated. Whether wisely or unwisely, such allowance has been expressly done away. Rule 37(a) (1) reads: "An appeal permitted by law from a district court to the Supreme Court or to a circuit court of appeals is taken by filing with the clerk of the district court a notice of appeal in duplicate. Petitions for allowance of appeal, citations and assignments of error in cases governed by these rules are abolished." The district judge has no function in the matter, and the provision of 28 U.S.C.A. § 228, touching allowance by the judges of this court, is correspondingly modified. The scheme of the new rules is developed in these further provisions: Rule 37(a) (1). "The duplicate notice of appeal and a statement of the docket entries shall be forwarded immediately by the clerk of the district court to the clerk of the appellate court." Rule 39(a), "The supervision and control of the proceedings on appeal shall be in the appellate court from the time the notice of appeal is filed with its clerk, except as otherwise provided in these rules. The appellate court may at any time entertain a motion to dismiss the appeal, or for directions to the district court, or to modify or vacate any order made by the district court or by any judge in relation to the prosecution of the appeal, including any order fixing or denying bail." The safeguard against appeals from judgments which are not final or for any other reason not appealable, lies in the requirement for immediate transmittal of the notice of appeal to this court, which may then, but not before, dismiss the appeal or make other appropriate order on motion. If the clerk of the district court fails or...