(concurring).
I concur in the affirmance of the order appealed from. I also agree with all that Judge MATTHES says about the sufficiency of Count Two of the information, but I see no need for saying it. As pointed out in my concurring opinion in Harris v. United States, 8 Cir., 288 F.2d 790, this Court has consistently ruled that the sufficiency of an information or indictment may not be attacked collaterally by a motion to vacate sentence.
In Knewel v. Egan, 268 U.S. 442, 446, 45 S.Ct. 522, 524, 69 L.Ed. 1036, the Supreme Court said:
“ * * * It is fundamental that a court upon which is conferred jurisdiction to try an offense has jurisdiction to determine whether or not that offense is charged or proved. Otherwise every judgment of conviction would be subject to collateral attack and review on habeas corpus on the ground that no offense was charged or proved. It has been uniformly held by this Court that the sufficiency of an indictment cannot be reviewed in habeas corpus proceedings. Ex parte Watkins, 3 Pet. 193 [7 L.Ed. 650]; Ex parte Yarbrough, 110 U.S. 651 [4 S.Ct. 152, 28 L.Ed. 274]; Ex parte Parks, supra [93 U.S. 18, 23 L.Ed. 787]; In re Coy, supra [127 U.S. 731, 8 S.Ct. 1263, 32 L.Ed. 274] ; Bergemann v. Backer, supra [157 U.S. 655, 15 S. Ct. 727, 39 L.Ed. 845]; Howard v. Fleming, 191 U.S. 126 [24 S.Ct. 49, 48 L.Ed. 121]; Dimmickv. Tompkins, 194 U.S. 540 [24 S.Ct. 780, 48 L.Ed. 1110]; In re Eckart, 166 U. S. 481 [17 S.Ct. 638, 41 L.Ed. 1085]; Goto v. Lane, 265 U.S. 393 [44 S. Ct. 525, 68 L.Ed. 1070].”
In Callanan v. United States, 8 Cir., 274 F.2d 601, 605 (affirmed 364 U.S. 587, 81 S.Ct. 321, 5 L.Ed.2d 312), we said:
“Appellant’s motion whether based upon Rule 35 [Federal Rules of Criminal Procedure] or Section 2255, supra [Title 28 U.S.C.], cannot serve as an appeal. The questions now sought to be litigated could have been urged by him on appeal from his conviction and hence he cannot collaterally attack the judgment of conviction and sentence by motion. * & * 99
As recently as April 18, 1961, we adhered to the rule that a plea of guilty precludes a collateral attack under § 2255, Title 28 U.S.C., upon the information or indictment. Swepston v. United States, 8 Cir., 289 F.2d 166.
In Heflin v. United States, 358 U.S. 415, 79 S.Ct. 451, 3 L.Ed.2d 407, Rule 35 of the Federal Criminal Rules was availed of to vacate sentences held to be unauthorized by statute. There can be no doubt that Rule 35 may be used to correct a sentence in excess of the maximum permitted by law.
I do not regard the Heflin case as changing the rule that the sufficiency of an indictment or information is not sub*586ject to review on a motion to vacate sentence.
I think it important in cases such as the instant case to refrain from considering questions which are not reviewable.