Zahn v. Hudspeth, 10 Cir., 102 F.2d 759, 761; Belt v. Zerbst, 10 Cir., 82 F.2d 18, 19, certiorari denied 298 U.S. 667, 56 S.Ct. 835, 80 L.Ed. 1391; Norton v. Zerbst, 10 Cir., 83 F.2d 677, certiorari denied 299 U.S. 541, 57 S.Ct. 24, 81 L.Ed. 398;
The question raised on this appeal was for the determination of the trial court. Granting, arguendo, that appellant did not raise the question on the trial or on the appeal from conviction, the effect of his failure to do so was to waive the question for all time. Bens v. United States, 2 Cir., 266 F. 152, certiorari denied, 254 U.S. 634, 41 S.Ct. 8, 65 L.Ed. 449; Moyer v. Anderson, 5 Cir., 203 F. 881; Brady v. United States, 8 Cir., 24 F.2d 399; Belt v. Zerbst, 10 Cir., 82 F.2d 18; Norton v. Zerbst, 10 Cir., 83 F.2d 677. The trial court had jurisdiction of the person and of the subject matter, and the district court was without authority to review its judgment in habeas corpus proceedings.
It is contended that said counts state the same offense, operating as double punishment, and that habeas corpus is the proper remedy to raise the question. In determining whether the same transaction constitutes two or more distinct offenses, the test is as to whether each offense requires proof of any fact which the other does not. Chrysler v. Zerbst, 10 Cir., 81 F.2d 975; Belt v. Zerbst, 10 Cir., 82 F.2d 18; Norton v. Zerbst, Warden, 10 Cir., 83 F.2d 677; Weeks v. Zerbst, 10 Cir., 85 F.2d 996; Casebeer v. United States, 10 Cir., 87 F.2d 668; Tanchuck et al. v. United States, 10 Cir., 93 F.2d 534; Burton v. United States, 202 U.S. 344, 377, 26 S.Ct. 688, 50 L.Ed. 1057, 6 Ann.Cas. 362; Gavieres v. United States, 220 U.S. 338, 342, 31 S. Ct. 421, 55 L.Ed. 489; Morgan, Warden of U.S. Penitentiary, Leavenworth, v. Devine, 237 U.S. 632, 35 S.Ct. 712, 59 L.Ed. 1153; Albrecht et al. v. United States, 273 U.S. 1, 47 S.Ct. 250, 71 L.Ed. 505. Two counts of an indictment charging separate and distinct federal offenses, the court having jurisdiction of the accused and of the offenses charged, and the sentences imposed being authorized by statute, on habeas corpus inquiry may not be made as to whether the proof supported the charges.
Ordinarily the only questions open to review in a proceeding in habeas corpus to obtain release from confinement after conviction for a penal offense are whether the court which imposed the sentence had jurisdiction of the offense and of the person of the defendant, and whether the sentence pronounced was one authorized by law. Belt v. Zerbst, 10 Cir., 82 F.2d 18; Norton v. Zerbst, 10 Cir., 83 F.2d 677; Weeks v. Zerbst, 10 Cir., 85 F.2d 996. The Sixth Amendment to the Constitution of the United States, expressly guarantees one charged with a crime the right to have counsel in his defense, and it is now settled law that the invalidity of a judgment and sentence for the wrongful refusal of the benefit of counsel may be raised on habeas corpus.
The burden was upon him which he has failed to sustain. Belt v. Zerbst, Warden, 10th Cir., 82 F.2d 18. 4. Appellant seeks advantage of that provision in section 155, 8 U.S.C.A., as follows: "The provision of this section respecting the deportation of aliens convicted of a crime involving moral turpitude shall not apply to one who has been pardoned," by showing a legislative pardon by the Dominion of Canada, a statute in force at the time of his conviction which in part is as follows: "Section 1078.
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.
Appeal is the procedure for that purpose. Tinkoff v. Zerbst (C.C.A.) 80 F.2d 464; Belt v. Zerbst (C.C.A.) 82 F.2d 18; Norton v. Zerbst (C.C.A.) 83 F.2d 677. The asserted incompetency of the wife to testify before the grand jury and on the trial was a matter exclusively for presentation and determination in that case. Neither that question nor the effect of the testimony can be reviewed on an application for a writ of habeas corpus.
"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, 10 Cir., 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.