Oral argument on appeal is not an essential ingredient of due process and it may be circumscribed as to prisoners where reasonable necessity so dictates. But see Bell v. United States, 129 F.2d 290; Barber v. United States, 142 F.2d 805. A prisoner's right to participate in oral argument on appeal is accordingly to be determined by the exercise of the discretionary power of the circuit court of appeals under ยง 262.
Barrett v. Hunter, 10 Cir., 1950, 180 F.2d 510, 20 A.L.R.2d 965. And see Bell v. United States, 5 Cir., 1942, 129 F.2d 290. On the other hand, if a single firing of a gun resulting in the wounding of two officers may constitute two separate offenses under the statute, then it becomes immaterial whether or not there was only one or more than one discharge of the weapon, and the question of fact need not be considered.
But where the motion and any response thereto present material and substantial issues of fact requiring a hearing, generally, in the exercise of a sound discretion, the Court should require the production of the prisoner. Cf. Price v. Johnston, 334 U.S. 266, 278, 68 S.Ct. 1049, 92 L.Ed. 1356, and Bell v. United States, 5 Cir., 129 F.2d 290. A writ of habeas corpus is a writ of right when reasonable cause is shown, but it is not a writ of course. It is granted only in the exercise of sound judicial discretion.
No move was made to take the deposition of Hughes. Under these circumstances the general rule applies that the grant of a continuance rests in the sound discretion of the trial judge. Isaacs v. United States, 159 U.S. 487, 16 S.Ct. 51, 40 L.Ed. 229. Burton could readily have taken the deposition of Hughes, though the prosecution could not. The evidence on the trial was not closed till May 14. See Heflin v. United States, 5 Cir., 132 F.2d 907; Bell v. United States, 5 Cir., 129 F.2d 290; Samples v. United States, 5 Cir., 121 F.2d 263. 3. The motions for acquittal were properly denied.
We have already discussed this doctrine. Compare, in this connection, Schwab v. Berggren, 143 U.S. 442, 12 S.Ct. 525, 36 L.Ed. 218; Bell v. United States, 5 Cir., 129 F.2d 290; Barber v. United States, 4 Cir., 142 F.2d 805. Questions of authority aside, it is but just to observe that despite his detention Price has been able substantially to take advantage of the statute he invokes, that is to say, he has in fact managed and conducted his own appeal in all essential particulars, including the argument of it, albeit the argument is in writing.
Certiorari to review its affirmance was denied on October 19, 1942. Bell v. United States, 5 Cir., 129 F.2d 290. Bell v. United States, 317 U.S. 665, 63 S.Ct. 74, 87 L.Ed. 534.
Schwab v. Berggren, 143 U.S. 442, 12 S.Ct. 525, 36 L.Ed. 218; Ormsby v. United States, 6 Cir., 273 F. 977, 985; Alexis v. United States, 5 Cir., 129 F. 60, 64; Com. v. Costello, 121 Mass. 371, 23 Am.Rep. 277; State v. Jacobs, 107 N.C. 772, 11 S.E. 962, 22 Am.St.Rep. 912; 14 Am.Jur. 900; 23 C.J.S., Criminal Law, ยง 1504, p. 1325; note, 5 L.R.A. 835. As said in State v. Fahey, 35 La.Ann. 9, 12: "It can now be considered as elementary, that the absence of the accused during the trial of motions not making part of the actual trial of his guilt or innocence, but having reference to the form or conduct of the trial, will not vitiate the proceedings". A recent decision directly in point is that of the Circuit Court of Appeals of the Fifth Circuit in Bell v. United States, 5 Cir., 129 F.2d 290, 291. That case involved a motion, in the nature of a petition for writ of error coram nobis, that a conviction be set aside on the ground that the defendant had been deprived of his constitutional right to counsel and to compulsory process for witnesses and had been otherwise unfairly dealt with. In sustaining the action of the trial judge in refusing the request of the defendant for an order that he be brought from Alcatraz to be present at the hearing of the motion, the Court, speaking through Judge Sibley, said: "The refusals of the judge to postpone the hearing to secure witnesses, and to order Bell brought from Alcatraz, are specified as error. Bell's presence was no more necessary than for the hearing of any other motion for new trial.