Hamel v. United States , 138 F.2d 508 ( 1943 )

PER CURIAM.

The appeal in the above cause having been argued and submitted to the court, and it appearing therefrom that certain circumstances bearing upon the question of appellant’s guilt as charged in the indictment and the moral turpitude involved in the alleged acts of the appellant were not fully disclosed at the trial, and it being the view of the court that the trial judge should. have and would welcome such additional information to be presented to him either in support of a motion for a new trial or for mitigation of punishment, we announced an opinion on June 1, 1943, remanding the cause to the District Court for the purpose of entertaining a motion for a new trial and without precluding the court’s reconsideration of the penalty imposed in the light of additional information and upon a consideration of the public interest to be served by such penalty, retaining the appeal here for subsequent decision both upon the original record and record of such subsequent proceedings as may, by the appellant, be included in his return of such further proceedings with amended allegations of error thereon.

It now appearing that a motion for new trial was submitted to the court below with proofs and argument in support thereof, and that upon consideration the motion was denied,, and it further appearing from the supplemental record that the court desired to modify its sentence heretofore imposed upon the appellant, substituting for the sentence of six years and a fine of $3,000, a reduced sentence of two years and a fine of $1,000, but that before imposing such modified sentence the court concluded to await disposition by us of the issues originally involved in the appeal and those raised by the appellant in challenge of the denial of his motion for new trial; and upon consideration of the claims of error originally submitted and those presented upon the supplemental record, the court being of the view that no prejudicial errors of law were committed at the original trial, and it being also of the view that the decision upon the motion for new trial was within the sound discretion of the court and no abuse thereof appearing, it is ordered that the judgment of conviction in the above-entitled cause be and it is hereby affirmed, and that the court below is not precluded from setting aside the sentence heretofore imposed and imposing the modified sentence by it indicated.