248 F2d 635 Hill v. United States
248 F.2d 635
Isaac P. HILL, Appellant,
UNITED STATES of America, Appellee.
United States Court of Appeals District of Columbia Circuit.
July 31, 1957.
Before BAZELON, DANAHER and BURGER, Circuit Judges, in Chambers.
Upon consideration of appellant's motion for leave to appeal in forma pauperis, or, in the alternative, for leave to appeal without prepayment of Clerk's fee and by typewritten brief, and of appellee's opposition thereto, it is
Ordered by the Court that the aforesaid motion be, and it is hereby, denied.
BAZELON, Circuit Judge (dissenting).
The issue before the court is whether the appeal sought by appellant in this case is "frivolous or malicious." 28 U.S. C. § 1915; Farley v. United States, 1957, 354 U.S. 521, 77 S.Ct. 1371, 1 L.Ed.2d 1529; Johnson v. United States, 1957, 352 U.S. 565, 77 S.Ct. 550, 1 L.Ed.2d 593. There is no claim here that the appeal is "malicious." The meaning of the word "frivolous" has crystallized in Supreme Court cases involving admission to bail pending appeal pursuant to Rule 46(a) (2), Fed.R.Crim.P., 18 U.S.C.,1 as well as in that Court's recent decisions on petitions for leave to appeal in forma pauperis. See Farley v. United States, supra; Johnson v. United States, supra. I do not think that the issues raised here by counsel appointed by us to represent appellant, even on the abbreviated transcript available to appointed counsel, may justifiably be characterized as "frivolous." And even under the more rigorous and out-moded "substantial question" test, this appeal cannot be regarded as insubstantial. Cf. Herzog v. United States, 1955, 75 S.Ct. 349, 351.2 I would grant leave to appeal in forma pauperis and direct that the stenographic transcript of the trial be provided at the expense of the United States.
See Ward v. United States, 1956, 76 S.Ct. 1063, 1065, 1 L.Ed.2d 25, 27, where Mr. Justice Frankfurter, sitting as Circuit Justice stated that bail should be allowed pending appeal unless the appeal is "so baseless as to deserve to be condemned as `frivolous' or is sought as a device for mere delay."
Mr. Justice Douglas, sitting as Circuit Justice, noted that there is a "substantial question" when "there is a school of thought, a philosophical view, a technical argument, an analogy, an appeal to precedent or to reason commanding respect that might possibly prevail."