Spero v. United States

WOODROUGH, Circuit Judge. The appellants, Arthur Spero and Thomas Simkoff, were convicted on September 21, 1935, of violations of section 151 of the Criminal Code (18 U.S.C.A. § 265) and of section 37 of the Criminal Code (18 U.S.C.A. § 88); the imposition of sentence being deferred to September 25, 1935. On that date sentence was imposed by the court, and on September 27th an order was entered setting October 4, 1935, for hearing on the preparation of the record on appeal. October 4th, the trial court entered an order fixing November 4, 1935, as the date for the settling and filing of the bill of exceptions and assignments of error. November 2, 1935, an extension of time until December 4, 1935, was granted for that purpose. Additional extensions of time were granted December 4, January 7, and January 28, 1936. The bill of exceptions was finally filed with the clerk on February 7, 1936, and the assignments of error on February 13, 1936. From an examination of the record on this appeal it is readily apparent that the bill of exceptions was not “procured to be settled” or “filed with the clerk of the court” “within thirty days after taking the appeal or within such further time as within said period of thirty days may be fixed by the trial judge.” Neither were the assignments of error filed within the time allowed by rule 9 of the Criminal Rules promulgated by the Supreme Court. It follows that neither may be considered by this court on appeal. 28 U.S.C.A. following section 723a; Cusamano v. United States (C.C.A.8) 85 F.(2d) 132, decided this day; Wolpa v. United States (C.C.A.8) 84 F.(2d) 829, opinion filed July 20, 1936. Absent a bill of exceptions and assignments of error, this court may still examine the indictment to ascertain whether the commission of a crime cognizable by the federal courts has been charged. Cusamano v. United States, supra. An examination of the indictment discloses that it sufficiently charged offenses against the laws of the United States, and the convictions are affirmed.