307 F.2d 506
Leon BEARDEN, Appellant,
UNITED STATES of America, Appellee.
United States Court of Appeals Fifth Circuit.
Aug. 7, 1962.
Robert S. Pine, El Paso, Tex., for appellant.
Frederick J. Morton, Asst. U.S. Atty., El Paso, Tex., for appellee.
Before HUTCHESON, RIVES and BELL, Circuit Judges.
Petitioner's counsel was not in any way prevented from appearing at the original hearing on appeal, and his reason for not appearing was of his own volition. What this motion comes down to its that because petitioner's counsel requested the United States Attorney to ascertain whether Government monies might be available to cover his transportation to Houston, and was advised that such money was not available, this court must grant a rehearing in a case in which he voluntarily failed to appear for the original hearing, without any assurance that he can or will appear if a rehearing is accorded. Petitioner was afforded the same opportunity for oral argument as that afforded the government, and the case is therefore unaffected by the holding of Elchuk v. United States, 370 U.S. 722, 82 S.Ct. 1574, 8 L.Ed.2d 802.
The motion for rehearing is
RIVES, Circuit Judge, dissenting.