Hood v. United States, 13131.
| Decision Date | 03 January 1946 |
| Docket Number | No. 13131.,13131. |
| Parties | HOOD et al. v. UNITED STATES. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Harry R. Moore and Grover T. Hood, for appellants.
Harry C. Blanton, U. S. Atty., of Sikeston, Mo., for appellee.
Before GARDNER, THOMAS, and RIDDICK, Circuit Judges.
This is an appeal from an order denying motion to vacate and set aside sentences and judgments against appellants which sentenced them to twenty-five years imprisonment. The motion is based upon substantially the following grounds: (1) That the robbery charged in the indictment was in reality a store robbery and not a mail robbery, and that personal funds were taken and not government property nor mail matter, and that the penalty for such offense is not more than three years; (2) that the sentences are excessive and that the most that could properly have been imposed was a three year sentence; (3) that they were deprived of their constitutional right of jury trial; (4) that they did not have competent counsel to represent them; (5) that the confession used against them, obtained from one appellant, was improperly used against the other appellant.
The indictment, to the second count of which defendants pleaded guilty, was filed May 13, 1943, and charged them with felonious assault upon the custodian of mail matter, moneys, funds and other properties of the United States belonging to the Post Office Department, with the intent to rob the custodian of said property and mail matter, and that in effecting or attempting to effect such robbery they put in jeopardy the life of the custodian by the use of dangerous weapons. On July 6, 1943, they pleaded guilty to Count 2. Sentence was deferred until August 2, 1943, when each was sentenced to imprisonment for a period of twenty-five years. No appeal was taken from the sentences as entered, nor was any further action taken in the trial court relative thereto until April 30, 1945, on which date appellants filed their joint motion to vacate the judgments and sentences. With their motion they filed a supporting brief, and the motion was placed on the motion docket for hearing, and in regular course came on for hearing May 8, 1945. The government on May 5, 1945, filed its response to the motion to vacate in which it set up substantially the following grounds for opposing the motion: (1) That the court in entering the judgments had jurisdiction and that the term at which the judgments had been entered had long expired and the court was therefore without jurisdiction to set aside its judgments; (2) that having entered pleas of guilty to the second count of the indictment, the court properly entered a sentence of twenty-five years under the mandatory terms of the statute; (3) that having entered pleas of guilty, the allegations of the indictment were admitted by defendants and precluded them now from denying or disputing the same; (4) that having entered a plea of guilty each defendant waived his right of trial by jury; (5) that the court appointed competent counsel for each of the defendants; (6) that the defendants having the advice and benefit of competent counsel entered their pleas of guilty; (7) that they had heretofore unsuccessfully attacked the judgments they now seek to have vacated, by filing applications for writs of habeas corpus in the United States District Court for the District of Kansas in January, 1944, alleging that Moore had entered a plea of guilty under misapprehension that he would be permitted to enter the army, and that he had attempted to withdraw his plea of guilty, which had been denied; that on the hearing of their petitions, during which they were brought into court to testify in their own behalf, the court denied the applications for writs of habeas corpus, and that all the points raised in the present motion to vacate were raised and presented by them in said applications for writs of habeas corpus.
On their appeal to this court, appellants urge substantially the same questions urged in the trial court. No question is raised as to the regularity of the proceeding in the trial court resulting in the order denying motion for vacation of the judgments. In considering the questions sought to be presented, we are disposed to eliminate from consideration all facts except those disclosed by the primary record and those facts of which the court might take judicial notice.
The indictment was drawn under Section 197 of the Criminal Code, 18 U.S.C.A. § 320, which provides:
"Whoever shall assault any person having lawful charge, control, or custody of any mail matter * * * or other property of the United States, with intent to rob, steal, or purloin such mail matter, money, or other property of the United States, or any part thereof, or shall rob any such person of such mail matter, or of any money, or other property of the United States, or any part thereof, shall, for the first offense, be imprisoned not more than ten years; and if in effecting or attempting to effect such robbery he shall wound the person having custody of such mail, money, or other property of the United States, or put his life in jeopardy by the use of a dangerous weapon, or for a subsequent offense, shall be imprisoned twenty-five years."
As has been observed the indictment as originally filed was in two counts but the first count was withdrawn, leaving the second count, which charged that the defendants "did knowingly, wilfully, unlawfully and feloniously assault one Ben Hinson * * * being then and there a person having lawful charge, control and custody of mail matter, and of monies, funds, and other property of the United States * * * with the felonious intent and purpose * * * to rob, steal and purloin such mail matter, monies, funds and other property of the United States * * *; that the said defendants, and each of them, in then and there effecting and attempting to effect said robbery, and with the felonious intent and purpose on the part of said defendants, and each of them, then and there to rob, steal and purloin said mail matter, monies, funds and other property of the United States, and to take and carry the same away from the possession of him, the said Ben Hinson, having lawful charge, control and custody of said mail matter, monies, funds and other property of the United States, in his official capacity as Postmaster aforesaid, did then and there put the life of him, the said Ben Hinson, in jeopardy by the use of dangerous weapons, to-wit, a sawed-off shotgun * * * and a 32 calibre revolver * * *."
The statute describes two offenses. As originally drawn, the first count in the indictment charged an assault with the intent to rob the Postmaster, while the second count charged that in effecting and attempting to effect the robbery they put in jeopardy the life of the custodian by the use of dangerous weapons. It is clear that the second count required proof of facts which the offense charged in the first count did not require; to-wit, that in effecting the robbery the life of the custodian was put in jeopardy by the use of dangerous weapons. The statute fixes the penalty for this offense at imprisonment for twenty-five years. The indictment is in conventional form and stated a public offense. Blackwood v. United States, 8 Cir., 138 F.2d 461; Bugg v. United States, 8 Cir., 140 F.2d 848. Whether or not defendants might have been indicted for some other offense or under some other statute is not material. The sentence as imposed was not excessive.
As to the claim that defendants were deprived of their constitutional right of jury trial, it need only be observed that having pleaded guilty, they waived that right. On their plea of guilty there was, of course, no issue to submit to a jury. By such pleas they admitted the allegations of fact charged in the indictment, and if the pleas of guilty were properly entered, they can not now be heard to contend that no mail matter was involved.
It is therefore necessary to consider whether their pleas of guilty were voluntary, freely and intelligently entered, and this in turn would seem to depend somewhat upon the allegation that they were not represented by competent counsel. On this issue we shall consider the matters of which the trial court might take judicial notice. It could, of course, take judicial notice of its own records in the original case, including the docket entries. From these entries it appears that on July 6, 1943, while the original indictment was pending and before defendants had entered their pleas, the following occurred:
Thereupon the following proceedings were had:
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