Summary
stating it was sufficient under Rule 7(b) "for the waivers of indictment to be filed in open court before arraignment without the necessity that they also be executed by the appellant in open court"
Summary of this case from U.S. v. StewartOpinion
No. 12773.
June 13, 1956.
No attorney for appellant.
Sumner Canary, and Loren E. Van Brocklin, Cleveland, Ohio, for appellee.
Before SIMONS, Chief Judge, and ALLEN and MILLER, Circuit Judges.
Appellant, being represented by an attorney of his own choice, executed written waivers of indictment and consented to be prosecuted by informations, which were filed in open court together with the signed waivers. The informations charged forgery of the endorsement of a payee on a United States Treasury check and the theft of a letter from the United States Mail, contrary to the provisions of Sections 495 and 1708, Title 18, U.S. Code. Following pleas of guilty, he was sentenced to five years imprisonment on each information to run concurrently.
This appeal is from the denial by the District Judge of appellant's motion to vacate the judgment, filed pursuant to the provisions of Section 2255, Title 28, U.S.Code.
The Court being of the opinion that it was sufficient under Rule 7(b), Rules of Criminal Procedure, 18 U.S.C. for the waivers of indictment to be filed in open court before arraignment without the necessity that they also be executed by the appellant in open court, Barkman v. Sanford, 5 Cir., 162 F.2d 592; United States v. Jones, 7 Cir., 177 F.2d 476.
And that it was not necessary that appellant be present at the hearing of his present motion in the District Court, Austin v. United States, 6 Cir., 224 F.2d 273.
And that under the provisions of Section 1708, Title 18, U.S. Code, as amended July 1, 1952, which is prior to the date of the offense herein charged, it is not necessary to allege and prove the monetary value of the thing stolen to authorize a sentence of five years.
It is ordered that the judgment be affirmed.