Mr. James A. O'Shea, of Washington, D.C., for plaintiff.
Mr. Homer S. Cummings, Atty. Gen., and Mr. Henry A. Schweinhaut, of Washington, D.C., for the United States. [302 U.S. 220, 221]
The case comes here on certified questions. 28 U.S.C. 346 (28 U.S.C. A. 346).
Appellant was indicted for violation of the National Motor Vehicle Theft Act, 41 Stat. 324, 18 U.S.C. 408 (18 U.S.C.A. 408). He was convicted, sentenced, and on July 1, 1936, in due time, took an appeal. On July 20, 1936, he filed an assignment of errors and a designation of record. On that date, he also submitted a bill of exceptions by filing it, not signed by the trial judge, with the clerk of the court. At the same time, he gave notice of that filing to the United States Attorney stating that he would submit the bill of exceptions for settlement. Prior to July 31, 1936, the bill of exceptions was 'agreed upon' by the United States Attorney and appellant's counsel. On July 31, 1936, the trial judge was on vacation outside the District and was not to return until September. He signed the bill of exceptions on September 2, 1936. Below his signature appeared the statement, 'The foregoing bill of exceptions is satisfactory to the Government and the defendant,' signed by the attorneys for both parties. There was no extension of time for the settlement of the bill of exceptions which, together with the assignment of errors, was transmitted to the clerk of the Court of Appeals on September 9, 1936. Argument was had in due course, and on April 5, 1937, the Court of Appeals (68 App.D.C. 111, 94 F.2d 236) decided that the judgment of the District Court should be reversed. The errors assigned and argued on the appeal involved solely the sufficiency of the evidence as shown by the bill of exceptions.
The Court of Appeals granted a motion by the government to stay the mandate and also a motion for rehearing 'limited to the legal effect of the settlement of the bill of exceptions on September 2, 1936, the appeal having been perfected on July 1, 1936.' The government moved that the bill of exceptions be stricken and [302 U.S. 220, 222] the judgment of the District Court be affirmed. The Court of Appeals has certified the following questions:
The bill of exceptions was not settled and filed in time. Rule 9, Criminal Appeals Rules (28 U.S.C.A. following section 723a). The fact that the trial judge was absent from the District was not an excuse. The Criminal Appeals Rules provide in that case for settlement by any other judge assigned to hold, or holding, the court in which the case was tried. Rule 13 (28 U.S.C.A. following section 723a). But although the bill of exceptions was not settled and filed in time, the Court of Appeals, from the time of the filing of the duplicate notice of appeal, had complete supervision and control of the proceedings on the appeal, including the proceedings relating to the preparation of the record on appeal. Rule 4 ( 28 U.S.C.A. following section 723a).
Under the comprehensive provisions of Rule 4, the Court of Appeals may vacate or modify any order made by the trial judge in relation to the prosecution of the appeal, and this authority extends to any order fixing the time for the settlement and filing of a bill of exceptions. Ray v. United States, 301 U.S. 158, 163 , 164 S., 57 S.Ct. 700, 703. The Court of Appeals may extend the time or shorten the time. Through its supervision and control it may correct any miscarriage of justice in respect to the settlement of the bill of exceptions. Neither party is remediless when such corrective action is required. To that end, and in order to give a desirable flexibility, the rules do not attempt to lay down specific requirements to meet various situations, but place upon the Court of Appeals full responsibility for the exercise of a reasonable control over all the proceedings relating to the appeal. Ray v. United States, supra.
In this instance, had the question been raised in limine, the Court of Appeals would have had power to deter [302 U.S. 220, 224] mine what the interests of justice required and it lost none of that power by reason of the fact that the question was not brought to its attention until the court had heard argument and reached a decision upon the assumption that the bill of exceptions was properly before it. As no question appears to have been raised as to the propriety or sufficiency of the bill of exceptions, apart from the time of settlement and filing, it would be a mere idle form to extend the time and return the bill of exceptions for resettlement accordingly, which the Court of Appeals has power to do, and thus to have the same bill of exceptions again presented and the case heard anew upon the merits, and the court may, in its sound discretion, refuse to strike the bill of exceptions and approve the settlement and filing heretofore had.
Question No. 1 is answered 'No.' Question No. 2 is answered 'No.' Question No. 3 is not answered.
It is so ordered.