Certiorari was granted to determine important questions which have arisen in the administration of the Criminal Appeals Rules promulgated May 7, 1934. 28 U.S.C.A. following section 723a; 292 U.S. p. 660 et seq.
Petitioner was convicted of violation of the mail fraud and conspiracy statutes. His timely appeal was taken on June 30, 1936. Within thirty days thereafter the trial judge extended the time to file a bill of exceptions to and including November 1, 1936, which was a Sunday. The trial had been long and the testimony was voluminous. On October 20, 1936, after unsuccessful efforts to obtain an agreement as to the condensation of the evidence, petitioner applied to the trial judge for an extension of time to settle and file the bill of exceptions. As it was found that the trial judge was without authority to grant that extension, petitioner sought an extension from the Circuit Court of Appeals, but his motion was denied on October 27th. He then asked the trial judge to settle the stenographer's minutes as the bill of exceptions. That motion was first denied on October 29th, but on the following day the trial judge expressed his willingness to receive a similar application if the colloquy of counsel was stricken from the transcript, that application to be made on Monday, November 2d. On that day the bill of exceptions, so prepared, was settled and filed. On November 16, 1936, the government moved to docket and dismiss the appeal upon the ground that petitioner had failed to comply with rules 8 and 9 of the Criminal Appeals Rules (28 U.S.C.A. following section 723a). The motion was granted. Petitioner asked for a rehearing and was heard. Insisting that it was impossible within the allotted time to set forth the evidence in condensed and narrative form, petitioner requested the Circuit Court of Appeals to exercise its discretionary power under rule 9 to the end that the defect in the bill of exceptions might be cured. That request was made simultaneously with the motion to dismiss. It appears to have been treated as a motion to amend the record and it was denied. The court took the view that as, by the assignment of errors filed with the bill of exceptions, the question was raised as to the sufficiency of the evidence to support the conviction, it was necessary under the rule that the evidence should be properly presented in condensed and narrative form. The court held that the time for the settlement of the bill of exceptions could not be enlarged, and that if the bill were returned to the trial judge he would be powerless to correct, amend or resettle it as the time for such action had expired.
Finally the court decided that petitioner was inexcusably delinquent. The court said: 'This appellant had four months v. United States (C.C.A.8th) 84 F. (2d) delinquency. The bill of exceptions was insufficient.' The motion to amend the record was denied and the motion to dismiss the appeal was granted. 86 F.(2d) 942, 944.
First.-The government contends United States (C.C.A.9th) 86 F(2d) 463; 2d was too late. The Circuit Court of Appeals correctly held the contrary. The trial judge, by valid order, had extended the time 'to and including the 1st day of November, 1936.' That day being Sunday, on which the bill of exceptions could not be filed, the trial judge construed his order as permitting the settlement and filing on the following day. Rule 13 of the Criminal Appeals Rules (28 U.S.C.A. following section 723a) provides:
'For the purpose of computing time as specified in the foregoing rules, Sundays and legal holidays (whether under Federal law or under the law of the State where the case was brought) shall be excluded.'
The government argues that this rule refers to a 'computation,' as where the extension is for a certain term or period, and not to a case where a specific date is fixed. The latter case is said to lie outside the rule and we are referred to various decisions which are deemed to furnish analogies for our guidance in reaching a conclusion upon a point left open. But there appears to be no reason why rule 13 should be so narrowly construed. The phrase 'For the purpose of computing time' was plainly intended to be of general application and 'computing' naturally embraces whatever reckoning is necessary to fix the time allowed. When a specific date is fixed and that date falls on Sunday or a holiday, the rule for the reckoning requires that that day be excluded and hence the bill of exceptions, in this case, apart from other questions, was settled and filed in time.