RESPONDENT: United States
LOCATION: Trailways Bus Terminal
DOCKET NO.: 70
DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the First Circuit
CITATION: 365 US 301 (1961)
ARGUED: Jan 10, 1961 / Jan 11, 1961
DECIDED: Feb 27, 1961
Facts of the case
Media for Green v. United StatesAudio Transcription for Oral Argument - January 10, 1961 in Green v. United States
Audio Transcription for Oral Argument - January 11, 1961 in Green v. United States
-- versus United States and Number 179, Theodore Green versus United States.
Mr. Kramer, you may continue with your argument.
May it please the Court.
I should like to speak just a few moments about the final point which is raised by petitioner in 179.
That point briefly is that because the alleged error in the judge's charge to the jury, the 25-year sentence under the third column for the aggravated form bank robbery is void.
It seems to us, the Government, that this motion in this respect similarly to the motion raised under Number 70 gives rise to a rather serious question about the orderly proper administration of the rules of criminal law in the federal courts.
That is for this reason as you will note in the record on pages 18 to 23.
At the trial, petitioners, able counsel took various exceptions to the judge's charge.
None of the exceptions in anyway however, raised the particular alleged error that is now being asserted for the first time.
In addition, prior to this motion in Number 179, petitioner has filed three other post-conviction motions, one in 1956, one in 1958, and the one in Number 70, the companion case here.
And none of those three motions was this particular point raised or with any reference in any way made to an alleged error of any kind in the judge's charge.
Now this, of course, is not a proceeding here by direct appeal.
So what it means is that for the first time here, more than seven years after the verdict and the sentence, the petitioner is attempting to assert an alleged error in the trial judge's charge to the jury.
Now, as we understand the petitioner's argument, it runs somewhat along this line.
This motion is under Rule 35.
Rule 35, of course, expressly says that it is to be used only to correct in a legal sense.
Petitioner says therefore, “We do not attack the judgment of conviction.
That is valid.
We attack only the 25-year sentence.”
What is wrong with the 25-year sentence?
Well, it is void because of the alleged error in the judge's charge.
But what was the effect of the alleged error in the judge's charge?
Well, it voided the judgment of conviction.
Well, it seems to us in effect that it's almost impossible to assert the alleged error in the charge without also in effect attacking the judgment of conviction.
We just -- and that incidentally was the point that troubled the Court of Appeals.
When you say the judgment of conviction, just what you mean, Mr. Kramer, do you mean the sentence in fold that --
I mean the jury's verdict.
The jury returned a verdict of guilty under the third count and that's what I mean by the per -- jury's verdict, their judgment.
Because they attack, because they say that the judgment of sentence as advised, why do that attack the used verdict?