178 F2d 760 Whelchel v. McDonald

178 F.2d 760

McDONALD, Warden.

No. 12760.

United States Court of Appeals Fifth Circuit.

Dec. 28, 1949.

Hugh Carney, Atlanta, Texas, for appellant.

Steve M. King, U.S. Attorney, Beaumont, Texas, Nicholas R. Voorhis, Lt. Col., Washington, D.C., Office of Judge Advocate Gen., Warren G. Moore, U.S. Attorney, Tyler, Texas, Reginald C. Miller, Lt. Col., J.A.G.C. Office of Judge Advocate Gen., Washington, D.C., for appellee.

Before HUTCHESON, WALLER, and SIBLEY, Circuit Judges.


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The motion for rehearing and for stay of judgment is hereby denied. We have delayed entering this order in order that appellant might have opportunity to apply to the Judge Advocate General under Article of War 53, as amended, 10 U.S.C.A. § 1525, for a new trial. Appellant by an attempt to amend his motion in this court informs us that application has been made to the Judge Advocate General for relief, and has been denied; and he now seeks to add a new ground of attack upon the judgment of conviction which was not presented in the District Court. This we think cannot be done. Moreover the last words of the amended Article of War 53, seem to make the action of the Judge Advocate General refusing a new trial binding upon the courts of the United States. The motion to amend is also denied.