Opinion
No. 12954.
December 18, 1956.
George R. Smith, Lexington, Ky., for appellants.
Henry J. Cook, U.S. Atty., John M. Kelly and Marvin D. Jones, Asst. U.S. Attys., Lexington, Ky., for appellee.
Before SIMONS, Chief Judge, and MARTIN and STEWART, Circuit Judges.
Upon their pleas of guilty to two counts of an indictment under 18 U.S.C.A. § 2312, the appellants received consecutive five-year prison sentences on each count. They subsequently filed motions to set aside their sentences pursuant to 28 U.S.C.A. § 2255, upon the ground that the indictment was insufficient to sustain a conviction or support a plea of guilty because each count failed to state the motor number of the automobile stolen. This is an appeal from the denial of those motions.
In our opinion the appellants' contention is entirely without merit. Each count of the indictment clearly stated every essential element of the offense of transporting a stolen automobile in interstate commerce with knowledge of its theft. Moreover, the sufficiency of an indictment not questioned at the trial is not subject to collateral attack in a proceeding of this nature unless the indictment is so grossly defective that it cannot be said under any reasonable construction to charge the offense for which conviction was had. Smith v. United States, 10 Cir., 1953, 205 F.2d 768; Risken v. United States, 8 Cir., 1952, 197 F.2d 959.
The order of the district court is affirmed.