(dissenting).
To its requirement that “An appeal shall be taken within five (5) days after entry of judgment of conviction,” Rule 3 of the Rules of Criminal Procedure After Plea of Guilty, Verdict or Finding of Guilt, 18 U.S.C.A. following section 688, provides a single exception, namely, “that where a motion for a new trial has been made within the time specified in subdivision (2) of Rule 2,1 the appeal may be taken with*397in five (5) days after entry of the order denying the motion.”
This case is not within the exception; for, although two motions for a new trial were made — one oh February 10, 1943, and one on May 6, 1943 — neither of them was made within the time specified in subdivision (2) of Rule 2. The appeal was not taken within five days after entry of judgment of conviction. Hence the appeal was not taken in time.2
Subdivision (3) of Rule 2, relied on by appellant, applies only to “a motion for a new trial solely upon the ground of newly-discovered evidence.” There was no such motion in this case. The motion of May 6, 1943, was not such a motion, but was a motion for a new trial upon the ground of newly-discovered evidence and upon other grounds. How, if at all, it might have affected appellant’s right of appeal had it been a motion for a new trial solely upon the ground of newly discovered evidence need not be considered.3
Since the appeal was not taken in time, we have no jurisdiction to entertain it4 and hence should dismiss it.
Subdivisions (2) and (3) of Rule 2 provide:
“(2) Save as provided in subdivision (3) of this Rule, motions in arrest of judgment, or for a new trial, shall be m,ade within three (3) days after verdict or finding of guilt.
“(3) Except in capital cases a motion for a new trial solely upon the ground of newly-discovered evidence may be made within sixty (60) days after final judgment, without regard to the expiration of the term at which judgment was rendered, unless an appeal has been taken and in that event the trial court may entertain the motion only on remand of the case by the appellate court for that purpose, and sufeh remand may be made at any time before final judgment. In capital cases the motion may be made at any time before execution of the judgment.”
O’Gwin v. United States, 9 Cir., 90 F.2d 494. See, also, Burr v. United States, 7 Cir., 86 F.2d 502; Decker v. United States, 5 Cir., 97 F.2d 473; United States v. Tousey, 7 Cir., 101 F.2d 892; Miller v. United States, 5 Cir., 104 F.2d 343; United States v. Infusino, 7 Cir., 131 F.2d 617; Nix v. United States, 5 Cir., 131 F.2d 857.
See, however, Fewox v. United States, 5 Cir., 77 F.2d 699.
See cases cited in footnote 2.