Kelly

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…

(concurring).

This is a motion in the nature of a pro-, ceeding coram nobis to set aside a sentence. It was filed as a part of the criminal proceeding in the district court below of United States v. Kelly, and is so entitled and numbered. The moving papers disclose that it was unknown to the district court when a plea of guilty was entered that certain facts existed which, if known to it, would have compelled the dismissal of the indictment.

These facts are that the thefts with violence were not of mail matter. The issue is presented whether it is the absence of the court’s knowledge of such facts which brings the instant case within the decisions of the analogous habeas corpus proceedings of Mooney v. Holohan, 294 U.S. 103, 110 , 55 S.Ct. 340 , 79 L.Ed. 791 , 98 A.L.R. 406 ; Johnson v. Zerbst, 304 U.S. 458 , 58 S.Ct. 1019 , 82 L.Ed. 1461 ; Hall v. Johnston, 9 Cir., 91 F.2d 363 . It is my opinion that we should consider and dispose of the issue so tendered.

Here the facts as to what Kelly stole were at all times known to him. His sentence on conviction after the plea of guilty is the same as if he had been found guilty after a trial by court or by jury. His situation is as if,…