Schultz v. Biddle

• Decision Date: 28 April 1927
• Docket Number: No. 7393.,7393.
• Citation: 19 F.2d 478
• Parties: SCHULTZ v. BIDDLE, Warden of the United States Penitentiary at Leavenworth, Kan.
• Court: U.S. Court of Appeals — Eighth Circuit

19 F.2d 478 (1927)

SCHULTZ v. BIDDLE, Warden of the United States Penitentiary at Leavenworth, Kan.

No. 7393.

Circuit Court of Appeals, Eighth Circuit.

April 28, 1927.

Charles A. Houts, of St. Louis, Mo., for appellant.

Al. F. Williams, U. S. Atty., Alton H. Skinner, and Frank H. McFarland, Asst. U. S. Attys., all of Topeka, for appellee.

Before BOOTH, Circuit Judge, and KENNAMER, District Judge.

BOOTH, Circuit Judge.

This is an appeal from and order denying and dismissing a petition for a writ of habeas corpus.

Hearing on the petition and the exhibits attached thereto, also on the motion to dismiss the same, was had before Hon. Walter H. Sanborn, Senior Judge of this court. The petition was denied, and the motion to dismiss the same granted.

The facts disclosed by the petition and the exhibits, the reasons for denying the petition and for granting the motion to dismiss the same, are all set forth in an opinion by Judge Sanborn, filed with his order.

The assignment of errors has been examined by us in connection with the record. We think all of the questions raised which had merit were passed upon correctly by Judge Sanborn in the opinion referred to, which is as follows:

"Before SANBORN, United States Circuit Judge

"Upon the presentation of the petition of Charles Schultz to the Circuit Judge for a writ of habeas corpus and for his discharge from confinement in the penitentiary at Leavenworth, Kan., the judge issued an order on W. I. Biddle, warden of the penitentiary, to show cause if any he had why the prayer of the petition should not be granted, the warden by the United States attorney and his assistant responded to the order with a motion to dismiss the petition for various reasons stated therein, and the respective parties prepared and submitted briefs upon the questions at issue.

"By the petition, the exhibits thereto, the evidence presented, and the motions of the respective parties, these facts are established:

"The petitioner was indicted, arraigned, and on December 14, 1921, pleaded guilty in the United States District Court for the Northern District of Ohio to the charges in ten counts of an indictment against him, found and returned in that court, and the court on that day sentenced him to imprisonment in the federal penitentiary at Leavenworth for a period of one year upon the first count, that he be further imprisoned for a period of twenty-five years upon each of the second, third, fourth, fifth, sixth, seventh, eighth, ninth and tenth counts of that indictment, and that the sentences on these counts be served concurrently after the expiration of the sentence under the first count. Under this sentence the petitioner was duly committed to the penitentiary and there confined.

"The indictment charged violations by the petitioner of section 197 of the Criminal Code (U. S. Compiled Statutes, § 10367), which declares that:

"`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; and if in effecting or attempting to effect such robbery, he shall wound the person having custody of the mail, or put his life in jeopardy by the use of a dangerous weapon, or for a subsequent offense, shall be imprisoned twenty-five years.'

"The first count of the indictment charged that the defendant on February 17, 1921, in the night, did, knowingly and feloniously assault one Joseph Hughes and one Paul Weinrich, who were then known to him to be and were in lawful custody of mail matter, designed and intended to be delivered by them to the main post office in Toledo, with the intent to rob such mail matter. The second count of the indictment charged that the defendant at the same time and place did, knowingly and feloniously, rob Joseph Hughes and Paul Weinrich, who were then in lawful custody of mail matter, to wit, a registered mail pouch fastened and secured by rotary lock R 6978 — 440, with the mail matter inclosed therein, which were then being conveyed by the Post Office Department from Detroit, Mich., to Toledo, Ohio, and did knowingly and feloniously take from Hughes and Weinrich and carry away without their consent the mail pouch and the mail matter therein by putting them in fear, and in effecting this robbery did put in jeopardy the lives of Hughes and Weinrich by the use of shotguns and pistols. The following eight counts of the indictment differ from this second count only in the fact that the registered mail pouch described in each of them is identified by a rotary lock bearing a letter and numbers different from those specified in any of the other counts in the indictment.

"So it appears that the defendant was charged in the first count of the indictment with and was sentenced thereon to imprisonment for one year under section 197 of the Criminal Code for an assault on persons in custody of mail matter with intent to rob them thereof; and...