Lucas v. United States, 201 F.2d 182 (D.C. Cir. 1952)

Appellant filed in the District Court a motion to stay grand jury proceedings. He said that on September 24, 1952, he appeared for a preliminary hearing before a judge in the Municipal Court, sitting as a committing magistrate. He was charged by information with committing assault with a dangerous weapon. Upon the Government's request, and without objection, a continuance until October 8th was granted, because one of the complaining witnesses was in the hospital. On October 7th, by agreement, the hearing was continued until October 31st. In his motion appellant further said that the matter was scheduled for presentation to the grand jury on October 13th. He said that should the grand jury indict him he would be deprived of his right to the preliminary hearing, a substantial right. The District Court denied his motion, 13 F.R.D. 177, and he appealed. We find no error.¹  The judgment of the District Court is, therefore, affirmed.

Addendum

November 5, 1952.

The attention of the court has been directed to a procedural point not considered in the opinion heretofore filed in this cause. Appellant titled his motion in the District Court as though in a criminal proceeding — "The United States of America v. Rocco A. Colandero, et al., Grand Jury No. 1560-52." Thus viewed, the order denying it was clearly interlocutory and was not appealable. If the action be treated as a civil action for mandamus or prohibition, as was the case in James v. Lawrence, supra, the District Court had no jurisdiction, since the action was brought against the sovereign United States. The practical result is the same in either event, so far as appellant is concerned. We think it better to cast the order of this court in the form in which appellant cast his action. Therefore, our order affirming the District Court judgment will be vacated and the appeal dismissed for lack of jurisdiction.

Appeal dismissed.