U.S. Court of Appeals for the Fifth Circuit, 1949

Whelchel v. McDonald Warden

U.S. Court of Appeals for the Fifth Circuit · Decided December 28, 1949 · Hutcheson, Waller, Sibley

178 F.2d 760 (Federal Reporter, Second Series)

Counsel

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.

Opinion

PER CURIAM.

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 á new trial. Appellant by an attempt to amend his motion in this count 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.

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