231 F2d 659 Wacker v. United States

231 F.2d 659

Carl Virgil WACKER and Norman Bebik, Appellants,

v.

UNITED STATES of America, Appellee.

No. 7133.

United States Court of Appeals Fourth Circuit.

Argued March 19, 1956.

Decided April 9, 1956.

Hugh E. Monteith, Asst. U. S. Atty., Sylva, N. C. (J. M. Baley, Jr., U. S. Atty., Asheville, N. C., on motion), in support of motion.

No counsel in opposition.

Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.

PER CURIAM.

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1

This is an appeal from a judgment and sentence of imprisonment upon a conviction of armed bank robbery in violation of 18 U.S.C. § 2113 and conspiracy to commit that crime in violation of 18 U.S.C. § 371, it being charged in the indictments that appellants did assault officials of the bank and put their lives in jeopardy by the use of dangerous weapons. Appellants, who were sentenced on November 23, 1955, duly noted an appeal to this court and on December 15, 1955, were allowed until February 1, 1956, to perfect their appeal but took no action to perfect it within the time allowed. The United States has filed motion to dismiss the appeal and has filed with the court a record of the proceedings in the court below.

2

We have examined the record and find the appeal to be entirely without merit. The defense of appellants was an alibi; but they were positively identified as being the persons who perpetrated the armed robbery of the bank and, in addition, circumstantial evidence pointed unmistakably to their guilt. Furthermore, an accomplice with whom they planned the robbery, and who came with them from Ohio to North Carolina to assist in the robbery, pleaded guilty and testified fully as to how it was planned and carried out by them. The questions involved in the case were pure questions of fact, the trial was fairly conducted, the jury was correctly charged and there was nothing in the rulings of the trial judge that would warrant our disturbing the verdict of the jury or awarding a new trial. If there were any merit in the appeal, we would overrule the motion to dismiss and set the case down for hearing in view of the length of the sentences imposed; but a careful examination of the record satisfies us that there is no merit whatever in the appeal and that the motion to dismiss should be granted.

3

Appeal dismissed.