Opinion
No. 5311.
December 14, 1928.
Appeal from the District Court of the United States for the Western District of Louisiana; Louis H. Burns, Judge.
Green, Moore Co., Inc., and others were convicted under an indictment charging them with unlawfully cutting, removing, and transporting timber located on public land of the United States. From an order declining to take jurisdiction of their application to trial court for probation, defendants appeal. Appeal dismissed.
See, also, 19 F.2d 130.
Charles C. McCoy and Griffin T. Hawkins, both of Lake Charles, La. (McCoy, Moss King, of Lake Charles, La., on the brief), for appellants.
Philip H. Mecom, U.S. Atty., and J. Fair Hardin, Asst. U.S. Atty., both of Shreveport, La.
Before WALKER, BRYAN, and FOSTER, Circuit Judges.
Appellants were convicted upon an indictment which charged them with unlawfully cutting, removing, and transporting timber located on public land of the United States. The judgment of conviction was, on May 4, 1927, affirmed by this court. 19 F.2d 130.
Long after the expiration of the term of court at which appellants were convicted, and before complying with any part of their sentence, they made written application to the trial court for probation, under the Act of March 4, 1925, 43 Stat. 1259 (18 USCA §§ 724-727). The District Judge did not grant or refuse the petition, but in deference to the decision of this court in United States v. Cook, 19 F.2d 126, entered an order declining to take jurisdiction. Appellants now seek to review that order by an appeal.
This court has jurisdiction to review by appeal, except in special matters not material here, only final judgments of District Courts. 28 USCA § 225. As there was no final judgment, either granting or denying the application for probation, it is clear that this court is without jurisdiction to entertain this appeal. It appears that the District Court refused to consider an earlier application, and that a former appeal was dismissed on the ground that it had not been taken within the period prescribed by statute.
We do not think that the execution of a sentence can be indefinitely postponed by the device of making repeated applications for probation.
The appeal is dismissed, with directions that the mandate of this court be issued forthwith.