Paddy
Paddy v. United States
Opinion
dissent Opinion
Mathews, J.
(dissenting).
To its requirement that “An appeal shall be taken within five (5) days after entry of judgment of conviction,” Rule 3 of the Rules of Criminal Procedure After Plea of Guilty, Verdict or Finding of Guilt, 18 U.S.C.A. following section 688, provides a single exception, namely, “that where a motion for a new trial has been made within the time specified in subdivision (2) of Rule 2, 1 the appeal may be taken with *397 in five (5) days after entry of the order denying the motion.”
This case is not within the exception; for, although two motions for a new trial were made — one oh February 10, 1943, and one on May 6, 1943 — neither of them was made within the time specified in subdivision (2) of Rule 2. The appeal was not taken within five days after entry of judgment of conviction. Hence the appeal was not taken in time. 2
Subdivision (3) of Rule 2, relied on by appellant, applies only to “a motion for a new trial solely upon the ground of newly-discovered evidence.” There was no such motion in this case. The motion of May 6, 1943, was not such a motion, but was a motion for a new trial upon the ground of newly-discovered evidence and upon other grounds. How, if at…
lead Opinion
Denman, J.
This is an appeal from a judgment of the District Court for the Territory of Alaska. The appellant, William James Paddy, was indicted under a charge of murder in the first degree in the killing, in Douglas, Alaska, on August 13, 1942, of one Toni Simin by shooting him with a revolver. Following a trial with jury, a verdict was returned on February 5, 1943, finding him guilty as charged. A motion for a new trial was denied and, on March 11, 1943, the court entered judgment sentencing the defendant to be’ hanged at Juneau, Alaska, on May 21, 1943.
*386 On May 6, 1943, appellant filed a petition for appeal with the district court, which petition was denied on the ground that notice of appeal was not filed within five days after entry of judgment pursuant to Rule 3 of Criminal Procedure After Plea of Guilty, Verdict or Finding of Guilt. 18 U.S.C.A. following section 688.
The same day, appellant filed a motion for arrest of judgment and sentence and for a new trial based on the ground of newly-discovered evidence. Following argument, the court denied the motion on May 8, 1943. On May 11, 1943, defendant filed and served notice of appeal from the judgment and from the denial of motion…