KELLY v. UNITED STATES, 138 F.2d 489

STEPHENS, Circuit Judge. Appeal from an order of the United States District Court denying appellant’s motion to vacate and set aside a judgment and penitentiary sentence which followed the plea of guilty. The motion was made long after expiration of the term of court at which the judgment was pronounced and was based upon appellant’s claim that the trial court is under the power and the duty of correcting an erroneous or void judgment whenever discovery of either fact is made.

Heretofore appellant sought release from prison upon the same state of facts as he presents here in a petition for the issuance of the writ of habeas corpus in which the district court having issued the writ and after a full hearing ordered' the writ discharged and remanded petitioner to the custody of the respondent. This court affirmed on appeal. Kelly v. Johnston, 9 Cir., 128 F.2d 793.

It appears that appellant with an accomplice entered a United States Post Office, and while the custodian thereof was held off at the point of a loaded gun by appellant the two robbers took and made way with money and United States postage stamps. Appellant was indicted under the provisions of 18 U.S.C.A. § 320, Criminal Code, § 197, which at that time was as follows : “Assaulting mail custodian and robbing mail; wounding custodian.

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. (R.S. §§ 5472, 5473; Mar. 4, 1909, c. 321, § 197, 35 Stat. 1126.)” To come within the terms of this statute the personal property stolen must be “mail matter” or “mail.” In the habeas corpus proceeding we said that money and postage stamps could be “mail matter” or “mail,” that is, in the mail as distinguished from cash and stamps owned by the government but not in the mail.

By the instant motion within the original case appellant seeks to show that the stolen property was not in the mail, hence, his acts are not within the provisions of the statute. If he has a legal right at this time to show this situation in the trial court and does show it, it is obvious that the judgment must be vacated. The petition under consideration is lengthy and involved as is generally the case in the work of a layman long addicted to the uncorrelated study of law in the interest of his own law involvement.

It is assumed by the appellant in his petition to the district court that such court will take judicial notice of the habeas corpus proceeding above mentioned and of all the evidence adduced at the hearing thereon. This evidence includes the testimony of the post office inspectors as to appellant’s statement to them concerning what was done by him during the robbery. Appellant claims such testimony shows that he did not commit the crime for which he is being punished and to which he pleaded guilty.

It is the belief of appellant that these facts are now within the knowledge of the trial court before which he pleaded guilty (another judge sitting) and that such court must set aside the conviction and sentence and set him free. It would appear that the court denied the motion upon the ground that it was wholly without authority to grant the relief sought, and it therefore did not pass upon the question of judicial notice or upon the merits of appellant’s claims as to the facts of the case. In this the district court was right.

The authority of the trial court to change its judgment once pronounced is definitely limited. In the instant case the time for change of plea and for a motion for a new trial has long since expired. The same is true as to the term of court during which the judgment of imprisonment was pronounced. This narrows the road along which this motion must be driven, if driven at all, to those few instances wherein a judgment may be changed by the trial court after the expiration of the court term. These instances are so well defined in United States v.

Mayer, 235 U.S. 55, 35 S.Ct. 16, 59 L.Ed. 129, and their application to the instant proceeding is so obvious that no comment is necessary.

We quote from pages 68 and 69 of the opinion in 235 U.S., on page 19 of 35 S.Ct., 59 L.Ed. 129, “In view of the statutory and limited jurisdiction of the Federal district courts, and of the specific provisions for the review of their judgments on writ of error, there would appear to be no basis for the conclusion that, after the term, these courts in common-law actions, whether civil or criminal, can set aside or modify their final judgments for errors of law; and even if it be assumed that in the case of errors in certain matters of fact, the district courts may exercise in criminal cases — as an incident to their powers expressly granted — a correctional jurisdiction at subsequent terms analogous to that exercised at common law on writs of error coram nobis (see Bishop, New Crim.

Proc. 2d ed., § 1369), as to which we express no opinion, that authority would not reach the present case. This jurisdiction was of limited scope; the power of the court thus to vacate its judgments for errors of fact existed, as already stated, in those cases where the errors were of the most fundamental character; that is, such as rendered the proceeding itself irregular and invalid.

In cases of prejudicial misconduct in the course of the trial, the misbehavior or partiality of jurors, and newly discovered evidence, as well as where it is sought to have the court in which the case was tried reconsider its rulings, the remedy is by a motion for a new trial (Jud.Code, § 269 [28 U.S.C.A. § 391]), — an application which is addressed to the sound discretion of the trial court, and, in accordance with the established principles which have been repeatedly set forth in the decisions of this court above cited, cannot be entertained, in the absence of a different statutory rule, after the expiration of the term at which the judgment was entered.” See Wetmore v.

Karrick, 205 U.S. 141, 157, 27 S.Ct. 434, 51 L.Ed. 745. People v. Kretchmar, 23 Cal.App.2d 19, 72 P.2d 243, a case strikingly similar in principle to the instant case, 31 Am.Jur. § 798, p. 321. Affirmed. The quoted statute was amended in 1935 so as to include personal property . though not in the mail. At the time under consideration there existed (and it is unchanged) another statute, Criminal Code, § 46, 18 U.S.C.A. § 99, defining robbery of personal property belonging to the United States. This statute provided the maximum penalty of imprisonment of ten years.