Opinion
No. 7988.
July 23, 1942.
Appeal from the District Court of the United States for the Eastern District of Wisconsin; F. Ryan Duffy, Judge.
Roy Richio was convicted of an offense, and he appeals. On motion of the United States to dismiss appeal for failure to prosecute, and on motion of appellant for additional time to present oral argument and file a brief or to file brief and argument subsequently to the time set for oral argument.
Appellant's motion overruled, and appellee's motion to dismiss for want of prosecution sustained.
Frederick W. Beyer, of Kenosha, Wis., for appellant.
B.J. Husting, U.S. Atty., and Carl R. Becker, Asst. U.S. Atty., both of Milwaukee, Wis., for appellee.
Before MAJOR, KERNER, and MINTON, Circuit Judges.
This is an attempted appeal from the same record as is contained in United States v. Infusino, 7 Cir., 130 F.2d 561, decided July 23, 1942. The record, therefore, contains all the deficiencies as to the instant appellant as it did to Infusino. In addition, no assignment of errors has ever been filed by this defendant, nor has any brief been filed. At the oral argument there was no appearance for this defendant. From a doctor's certificate in the file, we learn that counsel for this defendant was confined because of a sore throat on the date of oral argument. No question is presented on behalf of this defendant. The government, at the time of the argument, made a motion to dismiss this appeal for failure to prosecute. At the same time, there was pending a motion of this defendant for additional time to present oral argument and file a brief or to allow him to file his brief and argument subsequently to the time set for the oral argument. No excuse is offered for the failure to prosecute the appeal.
The motion of the defendant will be overruled, and the motion of the government to dismiss for want of prosecution is sustained. The appeal is dismissed.