L. M. Smith and Earl C. Corey v. United States

Smith and Corey already are here on an appeal from judgment of conviction of federal crimes. Shortly before argument here, they moved in the district court for a new trial on the ground of newly discovered evidence. After submission here (the case is undecided), the district court denied the motions. From the denial of these motions, Smith and Corey now attempt appeals and send their notices forward. The clerk will mark the notices, “lodged, not filed.”

After the motions were filed in the district court, leave should have been sought here under Rule 33 of the Federal Rules of Criminal Procedure, 18 U.S. C.A., to remand to the district court for that court to consider the motions. After such is done, this court normally asks the district court to file in its own record a statement as to whether it currently desires to consider the motion, a certified copy of such statement to be sent forward to this court.

Able counsel have the horse astride both shafts of the buggy.

On Motion of September 12, 1961.

In cases of motion for a new trial under Rule 33, Federal Rules of Criminal Procedure, this court prefers after the motion for new trial is filed in the dis trict court, then that a…