Aderhold v. Schiltz
| Decision Date | 08 November 1934 |
| Docket Number | No. 7326.,7326. |
| Citation | 73 F.2d 381 |
| Parties | ADERHOLD, Warden, v. SCHILTZ. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Lawrence S. Camp, U. S. Atty., and H. T. Nichols, Sp. Asst. to U. S. Atty., both of Atlanta, Ga., for appellant.
Frank A. Doughman, of Atlanta, Ga., for appellee.
Before BRYAN, FOSTER and SIBLEY, Circuit Judges.
This is an appeal by the warden from a judgment ordering the release of appellee from the Atlanta Penitentiary on writ of habeas corpus.
It appears that appellee was convicted on an indictment in three counts returned in the District Court for the Western District of North Carolina. All counts charged an attempt to rob a postal clerk. On the first and second counts he was sentenced to serve 25 years, but, as the sentences were suspended, they are not material. Appellee is held under a sentence of 10 years' imprisonment on the third count, which is as follows: "Third Count: And the grand jurors aforesaid, upon their oath aforesaid, do further present that L. A. Kenna, Rudolph Heimed and Bill Schiltz, late of Mecklenburg County, in said district, on the 9th day of August, 1930, unlawfully, wilfully and feloniously did attempt to rob M. E. Pierce, Clerk in Charge Chadwick Station of the Charlotte, North Carolina postoffice, a duly authorized postoffice of the United States, who had in his custody Fifty Dollars ($50.00) in cash, lawful money of the United States, said money being United States postoffice funds; contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States."
The District Court held there is no federal statute making an attempt to rob a postal clerk an offense, and ordered the prisoner discharged. Counsel for the warden concedes that there is no federal statute denouncing as an offense an attempt to rob a postal clerk, but seeks to sustain the validity of the conviction and sentence under the provisions of section 197, Criminal Code (18 USCA § 320), which, so far as pertinent, provides: "Whoever shall assault any person having lawful charge, control, or custody of any mail matter, with intent to rob, steal, or purloin such mail matter or any part thereof, or shall rob any such person of such mail or any part thereof, shall, for a first offense, be imprisoned not more than ten years. * * *"
It is argued that "an attempt to rob" and "assault with intent to rob" are synonymous terms, and therefore the defect is merely one of form, and the indictment...
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United States v. Bryant
...intended to proscribe all attempted robberies of persons having custody of the mails." (footnote omitted)); see also Aderhold v. Schiltz , 73 F.2d 381, 381 (5th Cir. 1934) (holding that indictment alleging attempt to rob postal clerk under § 2114(a) ’s predecessor did not charge an existing......
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United States v. Roberts, 8227.
...v. United States, 8 Cir., 288 F.2d 790, particularly the concurring opinion; cf. Manning v. Biddle, 8 Cir., 14 F.2d 518; Aderhold v. Schiltz, 5 Cir., 73 F.2d 381; Dawes v. Gough, 5 Cir., 170 F.2d 396. When it affirmatively appears, though outside of the indictment, that no federal crime was......
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U.S. v. Lawrence, 82-3341
...life in jeopardy by the use of a dangerous weapon. United States v. Smith, 553 F.2d 1239, 1241 (10th Cir.1977); Aderhold v. Schiltz, 73 F.2d 381, 381 (5th Cir.1934). Thus the elements which the government was required to prove 1. that Joseph Harris was assaulted; 2. that the assault was com......
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United States v. Spain, Cr. No. 11193.
...It includes an attempt to rob and in addition all the essentials of an assault. It is for this reason that cases such as Aderhold v. Schiltz, 5 Cir., 73 F.2d 381, are not Defendant relies upon the language of Norton v. Zerbst, 10 Cir., 83 F.2d 677, 678, where the court said in a prosecution......