Norton v. Zerbst, 1406.
| Decision Date | 05 June 1936 |
| Docket Number | No. 1406.,1406. |
| Citation | 83 F.2d 677 |
| Parties | NORTON v. ZERBST, Warden. |
| Court | U.S. Court of Appeals — Tenth Circuit |
James Norton, pro se.
Summerfield S. Alexander, U. S. Atty., and Homer Davis, Asst. U. S. Atty., both of Topeka, Kan., for appellee.
Before PHILLIPS, McDERMOTT, and BRATTON, Circuit Judges.
This is an appeal from an order sustaining a motion to dismiss a petition for a writ of habeas corpus. Petitioner was indicted on two counts. The first charged that he robbed James Adams, clerk in charge of a postal substation of property belonging to the United States, to wit, $122.72 of postal funds, $431.99 of money order funds, and 200 postal money order forms. He was convicted and sentenced to five years in the penitentiary on this count, which he has served.
The second count charges that on the same day petitioner "did unlawfully, wilfully, feloniously and knowingly assault one James Adams, clerk in charge of Postal sub-station No. 34 of the Detroit, Michigan Postoffice, located at 4349 Hamilton Avenue, Detroit, Michigan, a person having lawful charge, control and custody of certain mail matter, with intent on the part of said defendants James Norton, alias Herbert Cherry and James Baker to rob, steal and purloin such mail matter or any part thereof.
There was a conviction also upon this count, and a sentence of twenty-five years imposed which petitioner is now serving and from which he seeks release by the writ applied for.
It seems necessary again to say that in habeas corpus proceedings we are concerned only with whether petitioner was convicted in a court having jurisdiction over the offense and the defendant, and whether the sentence imposed was authorized by the statute. Belt v. Zerbst (C.C.A. 10) 82 F.(2d) 18, and cases therein cited. The petition and briefs set out what purports to be a copy of the contract establishing this particular substation; it is alleged that there was no mail receptacle in this substation and none closer than a box on the corner; that petitioner did not rob the station of anything except money and blank forms, and inferentially denies he had any intention to steal mail matter when he assaulted the clerk. Petitioner's entire argument is bottomed upon the assumption that the evidence at the trial disclosed that the clerk was not in charge of "mail matter"; that petitioner did not rob him of "mail matter" and did not intend so to do. We know nothing of the evidence at the trial, and it would make no difference if we did, for the sufficiency of the proof to sustain the charge cannot be tested on habeas corpus.
The two counts state different offenses under different statutes. Section 46 of the Criminal Code, 18 U.S.C.A. § 99, provides that "Whoever shall rob another of any kind or description of personal property belonging to the United States, or shall feloniously take and carry away the same, shall be fined not more than $5,000, or imprisoned not more than ten years, or both."
Section 197, Cr.Code, 18 U.S.C.A. § 320, 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...
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...after conviction but in such a proceeding the sufficiency of the evidence in the criminal case must be conclusively presumed. Norton v. Zerbst, 10 Cir., 83 F.2d 677, certiorari denied 299 U.S. 541, 57 S.Ct. 24, 81 L.Ed. 398; Moore v. Aderhold, 10 Cir., 108 F. 2d 729; Reger v. Hudspeth, 10 C......
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Garrison v. Hunter, 3129.
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