Smith v. United States

• Decision Date: 01 November 1967
• Docket Number: No. 18940.,18940.
• Citation: 384 F.2d 649
• Parties: Robert Lynn SMITH, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

384 F.2d 649 (1967)

Robert Lynn SMITH, Appellant, v. UNITED STATES of America, Appellee.

No. 18940.

United States Court of Appeals Eighth Circuit.

November 1, 1967.

James A. Cochrane, Jr., Finch, Finch, Knehans & Cochrane, Cape Girardeau, Mo., filed typewritten application to withdraw as counsel in this case.

No response to such application was filed by counsel for the government.

Before MATTHES and LAY, Circuit Judges.

PER CURIAM.

This matter comes before this court on application for leave to withdraw as counsel. Appellant's trial counsel has been appointed by this court to represent him in his appeal from a conviction under Title 50, App. U.S.C.A. § 462, while wilfully and knowingly failing and neglecting to report to his draft board pursuant to the order of his board. Counsel has filed a short statement of facts and states that he has "reluctantly concluded that there is no genuine issue or legal point which can be raised upon this appeal." Counsel has filed with the court cases which he argues conclusively show that the evidence in the case was solely one of fact below and that there is no arguable point or issue in the record to support the appeal. Counsel informs the court that the appellant would like to have as much time as possible to submit on his own behalf points he feels should be considered by the court.

We feel this matter is controlled by Anders v. State of California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and Douglas v. People of State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed. 2d 811 (1963). As Mr. Justice Clark stated in Anders:

"The constitutional requirement of substantial equality and fair process can only be attained where counsel acts in the role of an active advocate in behalf of his client, as opposed to that of amicus curiæ. The no-merit letter and the procedure it triggers does not reach that dignity. Counsel should, and can with honor and without conflict, be of more assistance to his client and to the court. His role as advocate requires that he support his client\'s appeal to the best of his ability. Of course, if counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel\'s brief should be furnished the indigent and time allowed him to raise any points

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