FLYNN v. UNITED STATES, 139 F.2d 669

MATHEWS, Circuit Judge. Arthur Lee Flynn was indicted in five counts for violating § 32 of the Criminal Code, 18 U.S.C.A. § 76, was arraigned, pleaded not guilty, was tried, was acquitted on counts 1 and 5, was convicted on counts 2, 3 and 4, was sentenced and, on March 22, 1943, took this appeal. Rule 9 of the Rules of Criminal Procedure after Plea of Guilty, Verdict or Finding of Guilt, 18 U.S.C.A. following

section 688, provides: “In cases other than those described in Rule 8, the appellant, within thirty (30) days after the taking of the appeal, or within such further time as within said period of thirty days may be fixed by the trial judge, shall procure to be settled, and shall file with the clerk of the court in which the case was tried, a bill of exceptions setting forth the proceedings upon which the appellant wishes to rely in addition to those shown by the clerk’s record as described in Rule 8.

Within the same time, the appellant shall file with the clerk of the trial court an assignment of errors of which appellant complains. The bill of exceptions shall be settled by the trial judge as promptly as possible, and he shall give no extension of time that is not required in the interest of justice.” On March 29, 1943 — within the 30-day period' prescribéd in Rule 9- — the trial court made an order extending the time for settling and filing a bill of exceptions in this case to May 24, 1943. The order did not, in terms, extend the time for filing an assignment of errors.

We assume, however, without deciding, that, in extending the time for settling and filing a bill of exceptions, it impliedly extended the time for filing an assignment of errors to May 24, 1943. The trial court did not, within the 30-day period prescribed in Rule 9, grant any further extension of time for settling and filing a bill of exceptions or for filing an assignment of errors. This court was not asked to, and did not, within the 30-day period or at all, grant any such extension.

Hence the time for settling and filing a bill of exceptions expired on May 24, 1943, and the time for filing an assignment of errors expired on, if not before, May 24, 1943. No bill of exceptions was settled or filed, nor was any assignment of errors filed, within that time. On May 24, 1943 — -long after the 30-day period expired- — the trial court made an order purporting to extend the time for'settling and filing a bill of exceptions to June 15, 1943. On May 29, 1943, an assignment of errors was filed.

On June 12, 1943, the trial court made an order ' purporting to settle a bill of exceptions file'd on that date. The orders of May 24, 1943, and June 12, 1943, were invalid and ineffectual. The assignment of errors and the bill of exceptions were too late and hence are subject to be stricken. True we may, in our discretion, refuse to strike an untimely bill of exceptions and may treat it as if it had been settled and filed in time, and presumably we have the same power with respect to an untimely assignment of errors.

With a view to determining whether we should exercise that power in this case, we have examined the bill of exceptions, the assignment of errors and the clerk’s record of proceedings. Our ' examination discloses no reversible error. We conclude that to exercise the power mentioned would serve no useful purpose. Accordingly, the bill of exceptions and the assignment of errors are stricken, and the judgment is affirmed.

Rule 8 describes cases wherein “it appears that the appeal is to be prosecuted upon the clerk’s record of proceedings, that is, upon the indictment and other pleadings and the orders, opinions, and judgment of the trial court, without a bill of exceptions.” This was not such a case. Appellate courts can grant such, extensions even though the 30-day period has expired. Ray v. United States, 301 U.S. 158, 57 S.Ct. 700, 81 L.Ed. 976; Forte v. United States, 302 U.S. 220, 58 S.Ct. 180, 82 L.Ed. 209; Kay v. United States, 303 U.S. 1, 9, 58 S.Ct. 468, 82 L.Ed. 607; Ross v. United States, 9 Cir., 102 F.2d 113, 114.

Ray v. United States, supra; Cary v. United States, 9 Cir., 86 F.2d 461, 462; St. Charles v. United States, 9 Cir., 86 F.2d 463, 464; Miller v. United States, 9 Cir., 88 F.2d 102; Hightower v. United States, 9 Cir., 88 F.2d 302; Long v. United States, 9 Cir., 90 F.2d 482, 483. Cary v. United States, supra; St. Charles v. United States, supra; Miller v. United States, supra; Hightower v. United States, supra; Long v. United States, supra. Forte v. United States, supra. See Rule 8, supra.