222 F2d 365 Miller v. United States

222 F.2d 365

James MILLER and Robert O. Aurdrey, Appellants,


UNITED STATES of America, Appellee.

No. 6960.

United States Court of Appeals Fourth Circuit.

Argued April 12, 1955.

Decided May 6, 1955.

James Miller and Robert O. Aurdrey, pro se, on brief.

Hugh E. Monteith, Asst. U.S. Atty., Sylva, N.C., J. M. Baley, Jr., U.S. Atty., Ashville, N.C., on brief, for appellee.

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


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This is an appeal from denial of a motion, made under 28 U.S.C. § 2255, to vacate and set aside sentences of imprisonment. Appellants were charged with larceny of goods from an interstate shipment in violation of 18 U.S.C. § 659. The trial judge has found as a fact that appellants were advised by the court of their right to counsel and to be tried by a jury upon an indictment, but that they, in open court, waived right to counsel and to indictment and consented to be tried upon information. Both entered pleas of guilty. Prior thereto they had made written statements to officers of the government admitting their guilt and the judge finds that these were freely and voluntarily made after they had been advised of their rights. Under such circumstances the trial judge, who was acquainted with the facts, was thoroughly justified in not having appellants produced in court on the hearing of their motion and in denying same.