(concurring specially).
I agree with the result the majority opinion announces, and, as abstractions, with most of what is said in it. We so decided in Stapp v. United States, 5 Cir., 120 F.2d 898, where the matter came up on direct appeal from a conviction on a record which showed that the mailing was after the purpose of the scheme to defraud had been completely accomplished.
I cannot agree, though, with the implications of the majority opinion that Dyhre v. Hudspeth, 10 Cir., 106 F.2d 286, was correctly decided, and, therefore, is authority for the view that where, as here, a defendant has pleaded guilty to an indictment in a mail fraud case which “at least apparently attempts to charge a federal offense”, it is open to him to challenge the indictment on habeas corpus or on a motion to set the judgment aside. The exact contrary of this has been decided in Hastings v. Hudspeth, 10 Cir., 126 F.2d 194. In that case, the Tenth Circuit, from which Dyhre v. Hudspeth comes, on the authority of the many cited cases, which had sub silentio overruled the Dyhre case, settled it that “if there is a federal offense which the indictment apparently attempts to charge, and the court has jurisdiction * * * over the person of the accused, the sufficiency of the indictment is not open to challenge on habeas corpus” [126 F.2d 196].
I think it quite plain that the sufficiency of the indictment here is not open to inquiry on motion to set the judgment aside. The indictment in question here certainly attempts to charge a federal offense. Certainly the court had jurisdiction over the person of the accused. He appeared and plead guilty. This has been decided with reference to this very indictment and this very defendant in Bauman v. Hunter, 10 Cir., 150 F.2d 449. I think our opinion should say no more than that we agree with and affirm the judgment on the views there expressed.