272 F2d 412 O'Neal v. United States

272 F.2d 412

Print Carter O'NEAL, Appellant,
UNITED STATES of America, Appellee.

No. 17489.

United States Court of Appeals Fifth Circuit.

November 10, 1959.

Hayden Rector, Mobile, Ala., Edward P. Turner, Sr., Chatom, Ala., Julius Lucius Echeles, Chicago, Ill., Wallace L. Johnson, Mobile, Ala., for appellant.

Ralph Kennamer, U. S. Atty., Mobile, Ala., for appellee.

Before RIVES, Chief Judge, and TUTTLE and BROWN, Circuit Judges.


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The appeal from the judgment of conviction was dismissed upon the ground that no notice of appeal other than an oral notice was filed with the Clerk of the District Court within ten days after the entry of the judgment. Rule 37(a), Federal Rules of Criminal Procedure, 18 U.S.C.A. O'Neal v. United States of America, 5 Cir., 1959, 264 F.2d 809. None of the counsel, either for the appellant or for the appellee, have ever called to this Court's attention the "Appeal Bond" signed by the appellant and his surety, approved by the Judge, and filed with the Clerk on the 16th day of October 1958, after the judgment of conviction had been entered on the same day. That bond was discovered by the Court itself when reading the record in connection with a subsequent appeal from the judgment denying the defendant's motion for new trial. The recitals of that bond1 are entirely adequate to be accepted as a notice of appeal under Rule 37(a), supra, and to vest this Court with jurisdiction.


The judgment dismissing the appeal was rendered March 18, 1959, rehearing denied May 1, 1959. This Court still has the power to vacate that judgment. See Rules 1 and 45(c), Federal Rules of Criminal Procedure; Harrison v. United States, 5 Cir., 1951, 191 F.2d 874. As far back as 1827, it was declared by Mr. Justice Story, speaking for the Supreme Court:


"Every court must be presumed to exercise those powers belonging to it, which are necessary for the promotion of public justice; and we do not doubt, that this court possesses the power to reinstate any cause, dismissed by mistake." The Palmyra, 12 Wheat. 1, 10, 25 U.S. 1, 10, 6 L.Ed. 531.


The judgment of this Court dismissing the appeal from the judgment of conviction is vacated and said appeal is reinstated. Further oral argument on the merits is not needed. The appellant may file at least four copies of an additional brief on the merits, typed if he so desires, within thirty days from this date, and the appellee may file an additional brief, likewise typed if it so chooses, and in a like number of copies, within twenty days after the receipt of a copy of the appellant's additional brief.


Dismissal vacated.



In part:

"Whereas, lately on the 16th day of October, 1958, in the District Court of the United States for the Southern District of Alabama, in a suit pending in said Court between the United States of America, plaintiff, and Print Carter O'Neal, defendant, a judgment and sentence was rendered against the said Print Carter O'Neal and the said Print Carter O'Neal has sued out an appeal to the United States Circuit Court of Appeals for the Fifth Circuit to reverse the judgment and sentence in the aforesaid suit.

"Now, the condition of the above obligation is such that if the said Print Carter O'Neal shall appear either in person or by attorney in the United States Court of Appeals for the Fifth Circuit on such day or days as may be appointed for the hearing of said cause in said Court and prosecute his said appeal * * *."