Johnny Ray Smith v. United States

Fifth Circuit

Johnny Ray Smith v. United States

240 F.2d 347, 1957 U.S. App. LEXIS 3356

CourtCourt of Appeals for the Fifth Circuit

DecidedFebruary 1, 1957

Docket16068

StatusPublished

Cited by7 cases

This text of 240 F.2d 347 (Johnny Ray Smith v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Johnny Ray Smith v. United States, 240 F.2d 347, 1957 U.S. App. LEXIS 3356 (5th Cir. 1957).

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PER CURIAM.

The motion for rehearing is denied.

We take notice, however, of counsels’ professed inability to find any support in the record for the court’s statement that the government’s prosecuting agent and the district judge “conferred privately in chambers with regard to defendant’s guilt and the punishment to be imposed therefor”, and refer them to Agent Lill’s testimony,¹ in which, after he had stated, “Quite frequently the Assistant United States Attorney or the United States Attorney requests that the background concerning the defendant be familiarized with the judge ahead of his sentencing”:, the following colloquy appears on page 92:

“Q. Well, did you talk to the

judge in order to give him the background? A. That’s right.

“Q. In relation to possible sentencing? A. That’s right.

“Q. That is why you were in ther¿ ? A. That’s right.”

Further, while we are not convinced that the last sentence in the opinion, which counsel refer to as “the remanding order of the court”, needs clarifying, in deference to their view that it does, the last paragraph of the opinion is amended to read:

“The judgment is reversed and the cause is remanded with directions to set aside the conviction and sentence and to proceed further and not inconsistently herewith, including, if the district judge is of the opinion that the ends of justice require it, permitting the defendant to withdraw his waiver of counsel and- his plea of guilty and to stand trial.”

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PER CURIAM.

The motion for rehearing is denied.

We take notice, however, of counsels’ professed inability to find any support in the record for the court’s statement that the government’s prosecuting agent and the district judge “conferred privately in chambers with regard to defendant’s guilt and the punishment to be imposed therefor”, and refer them to Agent Lill’s testimony,¹ in which, after he had stated, “Quite frequently the Assistant United States Attorney or the United States Attorney requests that the background concerning the defendant be familiarized with the judge ahead of his sentencing”:, the following colloquy appears on page 92:

“Q. Well, did you talk to the

judge in order to give him the background? A. That’s right.

“Q. In relation to possible sentencing? A. That’s right.

“Q. That is why you were in ther¿ ? A. That’s right.”

Further, while we are not convinced that the last sentence in the opinion, which counsel refer to as “the remanding order of the court”, needs clarifying, in deference to their view that it does, the last paragraph of the opinion is amended to read:

“The judgment is reversed and the cause is remanded with directions to set aside the conviction and sentence and to proceed further and not inconsistently herewith, including, if the district judge is of the opinion that the ends of justice require it, permitting the defendant to withdraw his waiver of counsel and- his plea of guilty and to stand trial.”

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240 F.2d 347, 1957 U.S. App. LEXIS 3356, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnny-ray-smith-v-united-states-ca5-1957.

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