Kreuter v. United States
| Citation | 201 F.2d 33 |
| Decision Date | 10 January 1953 |
| Docket Number | No. 4540.,4540. |
| Parties | KREUTER v. UNITED STATES. |
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
Mitchell B. Johns, Denver, Colo., for appellant.
Charles S. Vigil, U. S. Atty., Denver, Colo., and Clifford C. Chittim, Asst. U. S. Atty., Boulder, Colo., for appellee.
Before PHILLIPS, Chief Judge, and BRATTON and HUXMAN, Circuit Judges.
This is an appeal from an order denying a motion to vacate a judgment and sentence.
Kreuter appeared in person in the court below. William T. Dingman, a member of the Bar of Colorado, was appointed to represent him. Kreuter, in writing, waived his right to be charged only by indictment and consented to be charged by information. Thereupon, an information was filed, the material portion of which reads as follows:
"That on or about the 15th day of January, 1951, in the City and County of Denver, State and District of Colorado, Gottfried William Kreuter, with unlawful and fraudulent intent, did transport in interstate commerce from the City and County of Denver, State and District of Colorado, to Salt Lake City, Utah, a falsely made, forged and counterfeited security, to-wit, a certain check drawn on the Utah First National Bank of Salt Lake City, payable to the International Trust Company of Denver in the principal sum of $250.00, dated January 15, 1951, and signed by said defendant as W. L. Davis; and the said defendant, Gottfried William Kreuter, then knew the same to have been falsely made, forged and counterfeited."
The proceedings at the arraignment, following the waiver of indictment and consent to be charged by information, were as follows:
The substance of what Kreuter said in such proceedings was that he signed the check by the name of W. L. Davis, which was a name he had assumed and had used on prior occasions. It should be noted that he did not deny he signed the check W. L. Davis with the intent and purpose to pass it as the check of a person other than himself.
The purpose of 28 U.S.C.A. § 2255 was not to confer a broader right of attack upon a judgment and sentence than might theretofore have been made by habeas corpus, but rather to provide that the attack which theretofore might have been made in some other court through resort to habeas corpus, must now be made by motion in the sentencing court, unless it shall appear that the remedy by motion is inadequate or ineffective to test the legality of the prisoner's detention. While the form of attack is direct, the grounds therefor are limited to matters that may be raised on collateral attack.1
When there is an offense defined by a Federal statute, of which the sentencing court has jurisdiction, and the indictment or information apparently attempts to charge an offense under such statute and such court acquires jurisdiction over the person of the defendant, the sufficiency of the indictment is not subject to attack in a habeas corpus proceeding, nor by motion under § 2255, supra.2 Here, there was an offense defined by 18 U.S.C.A. § 2314.3 The information attempts to charge an offense under that statute. The sentencing court acquired jurisdiction over the person of the defendant. It does not affirmatively appear on the face of the information that no Federal offense was committed. Accordingly, we hold that the information was not vulnerable to collateral attack by motion under § 2255, supra.4
In the absence of a statutory prohibition, a person, without abandoning his real name, may adopt or assume a name, and he may use such assumed name to identify himself in the transaction of his business, the execution of contracts and the carrying on of his affairs. But he must not use it to defraud others through a mistake of identity.5
In Buckner v. Hudspeth, 10 Cir., 105 F.2d 393, we said at page 395:
6
However, it has been held in many jurisdictions that the essence of forgery at common law is the making of a false writing, with the intent that it shall be received as the act of another than the person signing it.7 The adjudicated cases in such jurisdictions hold that while there may be a forgery by the use of a fictitious name, a necessary element is an intent to commit fraud by deception as to the identity of the person who uses the name.8
The question remains whether Kreuter so qualified his plea of guilty as to make it ineffective as such. That was a question primarily for the determination of the sentencing court. Since this is a collateral attack, the acts of the...
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Corey v. United States
...343 U.S. 927, 72 S.Ct. 761, 96 L.Ed. 1338. 17 See Herman v. United States, 289 F. 2d 362, 367 (5th Cir. 1961); Kreuter v. United States, 201 F.2d 33, 36 (10th Cir. 1952). 18 Wilson v. United States, 162 U.S. 613, 620-621, 16 S.Ct. 895, 40 L.Ed. 1090 (1896); United States v. Kessler, 253 F.2......
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...386, 388—389, 206 N.E.2d 330, 332 (1965); State v. Branner, 149 N.C. 559, 563, 63 S.E. 169, 171 (1908). See also Kreuter v. United States, 201 F.2d 33, 36 (CA10 1952). In the federal courts, Fed.Rule Crim.Proc. 11 expressly provides that a court 'shall not enter a judgment upon a plea of gu......
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