Donathan Garvin Kemp, Appellant, v. United States of America, Appellee, 419 F.2d 383 (5th Cir. 1970)

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US Court of Appeals for the Fifth Circuit - 419 F.2d 383 (5th Cir. 1970) November 26, 1969
Certiorari Denied March 2, 1970
See 90 S. Ct. 1008

Howard Moore, Jr., Peter E. Rindskopf, Atlanta, Ga., for appellant.

Charles B. Lewis, Jr., Asst. U. S. Atty., Atlanta, Ga., for appellee.

ON PETITION FOR REHEARING

Before JOHN R. BROWN, Chief Judge, THORNBERRY, Circuit Judge, and TAYLOR, District Judge.

PER CURIAM.


Appellant's Petition for Rehearing is predicated on the proposition that the Court overlooked Rule 29(c) of The Federal Rules of Criminal Procedure which expressly allows a motion for judgment of acquittal after return of the verdict regardless of whether such motion was made at an earlier stage of the trial.

Regardless of the applicability of Hall v. United States (5th Cir. 1968), 403 F.2d 649, under Rule 29(c) we have reviewed the record and consider the evidence ample to sustain the verdict. As pointed out in the original opinion, "After examining the record we feel the evidence was sufficient to support the conviction. The Selective Service file was admitted and contains evidence upon which reasonable minds could conclude that the Appellant was guilty of the offense charged." Hall was not determinative of this appeal.

The Petition for Rehearing is

Overruled.