Opinion · Court of Appeals for the Fifth Circuit

United States v. Henry J. Askew, Jr.

441 F.2d 258

Type
Opinion
Court
Court of Appeals for the Fifth Circuit
Jurisdiction
Federal
Date
1971-04-05
Topic
general

PER CURIAM: On this appeal Henry J. Askew contended his Sixth Amendment right to a speedy trial was violated in his conviction for filing false federal income tax returns. However, while the appeal was pending, Askew died. Since a criminal prosecution abates ab initio upon the death of an appellant, the case must be remanded with directions to the district court to vacate the judgment and dismiss the indictment. Durham v.

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Cited by
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UNITED STATES v. ASKEW,441 F.2d 258(5th Cir. 1971)
UNITED STATES of America, Plaintiff-Appellee, v. Henry J. ASKEW, Jr.,
Defendant-Appellant.
No. 29807.
United States Court of Appeals, Fifth Circuit.
April 5, 1971.
Gordon G. Hawn, Ron Beneke, San Antonio, Tex., for defendant-appellant. Foster, Lewis, Langley, Gardner Hawn, San Antonio, Tex., of counsel.

Seagal V. Wheatley, U.S. Atty., San Antonio, Tex., Johnnie M. Walters, Asst. Atty. Gen., Lee A. Jackson, Willard C. McBride, Meyer Rothwacks, Joseph M. Howard, Richard B. Buhrman, Attys. Dept. of Justice, Washington, D.C., for plaintiff-appellee.
Before RIVES, AINSWORTH and MORGAN, Circuit Judges.
PER CURIAM:
On this appeal Henry J. Askew contended his Sixth Amendment right to a speedy trial was violated in his conviction for filing false federal income tax returns. However, while the appeal was pending, Askew died. Since a criminal prosecution abatesabinitioupon the death of an appellant, the case must be remanded with directions to the district court to vacate the judgment and dismiss the indictment. Durham v. United States, 1971,401 U.S. 481,91 S.Ct. 858,28 L.Ed.2d 200; Daniel v. United States, 5 Cir., 1959,268 F.2d 849; Crooker v. United States, 8 Cir., 1963,325 F.2d 318; D'Argento v. United States, 9 Cir., 1965,353 F.2d 327.

Remanded with directions.Page 259