UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
February 6, 1942
MOOK ET AL.
Appeal from the District Court of the United States for the Southern District of New York.
Before L. HAND, CHASE, and FRANK, Circuit Judges.
Mook was convicted of violating the Interstate Commerce Act, 49 U.S.C.A. § 1 et seq., and appealed. Thereafter he died; and his administratrix now seeks to revive the appeal. The authorities give us no alternative but to dismiss the appeal.*fn1 Nevertheless, we think it may not be amiss to say that it seems to us that the next-of-kin of a convicted person who dies pending an appeal have an interest in clearing his good name, which Congress might well believe would justify a change in the law.
The appellant, Fleming, was convicted at the same time, but in his case sentence was suspended and he was put on probation for one day. His appeal also must be dismissed.*fn2 In United States v. La Shagway, 9 Cir., 95 F.2d 200, the appellant had been sentenced, but execution was suspended; therefore an appeal lay under Berman v. U.S., 302 U.S. 211, 58 S. Ct. 164, 82 L. Ed. 204. If Fleming wishes to review the judgment at bar, it is always possible for him to apply for sentence and suspension of execution.