United States v. Strewl, Docket No. 16130.
| Decision Date | 09 July 1947 |
| Docket Number | Docket No. 16130. |
| Citation | 162 F.2d 819 |
| Parties | UNITED STATES v. STREWL et al. |
| Court | U.S. Court of Appeals — Second Circuit |
William B. Moore, of New York City, for Strewl.
McGlone pro se.
Irving J. Higbee, of Syracuse, N. Y., for appellee.
Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
Strewl now moves that we recall our mandate and reopen his conviction, nearly ten years old, because the indictment of 1934, on which we held that the conviction could be affirmed, had been superseded by the indictment of 1937, and that indictment had been returned at the same term of court as that at which the 1934 indictment had been found "insufficient."1 We were aware of the Act of May 10, 1934, 18 U.S.C.A. § 587, at the time of the appeal, though of course not of the ruling of the Supreme Court which had not then been made. However, neither the statute, nor the ruling has anything to do with the case. It would have been material, if the 1934 indictment had been "found" by the court to be "insufficient," but it never was so found. As we said before at some length, exactly the opposite was the case; the indictment of 1934 was good, as against Strewl; its only "insufficiency" was that it failed to include other conspirators who were equally guilty as he. It is apparent from a mere glance at the statute that that is not the kind of "insufficiency" which Congress had in mind. The purpose was to extend the statute of limitations, so that a person who had been indicted under an indictment which, as it turned out, would not support a conviction, should not escape because the fault was discovered too late to indict him again. It would be absurd to apply it to a case where the indictment was perfectly good so far as it went, but did not include all those guilty. Strewl's argument comes to no more than a purely verbal interpretation of the word "insufficient," in disregard of the plain intent of the statute.
McGlone has filed a petition which, so far as appears, has never been served upon the district attorney, but merely lies in our files. The points he raises all concern the kidnapping indictment.
First, he says that Browne, the attorney who represented him upon his appeal, was untruthful, when he said in his brief on appeal that the accused were too poor to present a complete record of the case. Browne did say so, but it by no means follows that he was untruthful; the trial took nearly two and one-half months and it is altogether...
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