McCune v. Kilpatrick

• Decision Date: 28 December 1943
• Docket Number: No. M-6933.,M-6933.
• Citation: 53 F. Supp. 80
• Parties: McCUNE v. KILPATRICK, Commanding Officer of Hampton Roads Port of Embarkation, et al.
• Court: U.S. District Court — Eastern District of Virginia

53 F. Supp. 80

McCUNE v. KILPATRICK, Commanding Officer of Hampton Roads Port of Embarkation, et al.

No. M-6933.

District Court, E. D. Virginia, Norfolk Division.

December 28, 1943.

COPYRIGHT MATERIAL OMITTED

C. Dodson Morrisette, of Norfolk, Va., for petitioner.

Sterling Hutcheson, U. S. Atty., of Richmond, Va., Russell T. Bradford, Asst. U. S. Atty., of Norfolk, Va., General Myron C. Cramer, The Judge Advocate General, U. S. Army, Colonel Archibald King, J. A. G. D., U. S. Army, and Captain F. Gordon Hudgins, Transportation Corps, U. S. Army, all of Washington, D. C., Tom C. Clark, Asst. Atty. Gen., and Sheldon E. Bernstein, Department of Justice, of Washington, D. C., for respondents.

WYCHE, District Judge (sitting by special designation).

This is an application for a writ of habeas corpus filed by a prisoner in the military stockade at Camp Patrick Henry, Virginia, to obtain his release. He is being held awaiting trial by a general court-martial of the United States Army on a charge of desertion.

There seems to be little dispute as to the facts, which I find to be as follows:

The petitioner, Lawrence Elroy McCune, a veteran of the last world war, having served with the American Expeditionary Forces, and honorably discharged, is, and has been, a seafaring man, a steward and chief cook, for the past twenty years. As a member of the Seafarer's International Union of North America, he was on September 22, 1943, in the Norfolk, Virginia, hall of the union seeking employment. The local representative of the union had received a call from Taylor and Andrews, Inc., Norfolk representatives of the Mississippi Shipping Company, which operates the Steamship Thomas B. Robertson, under contract with the United States Government, for seamen and a chief cook to complete the crew of the vessel. In conformity with the custom, notice of this call was posted on the bulletin board in the union hall, and McCune, upon observing the notice, manifested a desire to be employed as chief cook, and was, according to custom, issued duplicate certificates by the union to identify him to the vessel, and in the late afternoon of said date, reported aboard the ship, which was then docked at Pier 2 of the Army Base at Norfolk, Virginia.

The following day, September 23, 1943, he assumed his duties of preparing three meals each day for the crew of the vessel, seventy-eight in number, including a gun crew of twenty-nine. The gun crew was made up of enlisted personnel and one officer of the United States Navy.

The next day, September 24, 1943, McCune left the vessel early in the morning, reported to the United States Shipping Commissioner's office in Norfolk, Virginia, and signed articles of agreement¹ with Carl I. Stevens, master of the vessel, on the usual printed form, to which was added the following, as to the destination of the voyage, and the duration of the petitioner's employment: "Now bound from the port of Norfolk, Virginia, a point in the Atlantic Ocean to the eastward of Norfolk, Virginia, and thence to such ports and places in any port of the world as the Master may direct or as may be ordered or directed by the United States Government, or any Department, Commission or Agency thereof, and back to a final port of discharge in the United States, for a term not exceeding twelve calendar months." Late in the afternoon of the same day he reported back aboard the vessel. From then until the afternoon of Saturday, October 2, 1943, McCune performed his duties as chief cook.

McCune was advised by the Chief Steward on the morning of October 2nd that troops were coming aboard, and he would have to prepare meals for them. He inquired, "Why is the A. T. S. sending troops down here?" And told the Steward that he signed as a merchant cook, not as a transport cook. On the afternoon of October 2, 1943, approximately five hundred soldiers boarded the vessel, and McCune was ordered by the Chief Steward to prepare supper for the troops as well as for the crew of the vessel, which he did, without further protest at that time.

Supper for the soldiers having been prepared, and ready to be served, supper for the crew not having been completed, McCune reported this fact to a Major then in charge of the army troops, and told him: "You will have to go and eat over here (designating tables for the officers) so I can get through and clear the galley on the top side." To which the Major replied: "There isn't anybody going to eat until the Colonel eats." Whereupon McCune said: "If the army is going to take this over, and not eat when it is ready, I am going to get off the ship." McCune then asked the master of the vessel for his discharge. He told the master to give him a discharge, and he would get off the ship, that he was not riding it if the army was going to take it over, because he could not do the work. The master replied he had to move his ship, and did not issue the discharge, whereupon McCune packed some of his clothes, threw a part of his baggage onto the dock, and personally followed by jumping over the side of the vessel as it was pulling away from the dock. He was then and there arrested by the Military Police, taken to the officer in charge of the guard, to whom he gave a signed statement, and was then confined as above stated.

The Steamship Thomas B. Robertson was built and is owned by the United States. Upon her completion about a year ago, she was turned over by her builders to the United States Maritime Commission, by it to the War Shipping Administration, and by it to the Mississippi Shipping Company under a contract, in which it is stated that that company is the agent of the United States, for the operation of the ship, and not an independent contractor, and that her crew are to be paid out of the funds supplied by the United States. The agreement further provides: "The Master shall be an agent and employee of the United States, and shall have and exercise full control, responsibility and authority with respect to the navigation and management of the vessel. * * * The officers and members of the crew shall be subject only to the orders of the master." She is a vessel of a type commonly known as a "liberty ship", and up until August 29, 1943, had been engaged solely in carrying cargo or freight. On that date she was put into shipyard, and a portion of the vessel converted into quarters for the purpose of transporting human beings, specifically, prisoners of war. While lying at dock, as aforesaid, on September 22, 23 and 24th, the vessel was loaded with jeeps, army truck bodies, and other materials for the use of the army and navy in the prosecution of the war. At the time he signed the articles of agreement, McCune did not know any of the facts contained in this paragraph.

Until he was advised by the Chief Steward, on the morning of October 2nd, that troops were coming aboard, McCune did not know that the vessel would carry troops or other humans, except its regular crew, including the gun crew, and thought that his duties were with reference to preparing meals for said crew.

The Army Base was known to petitioner to be such, and he saw members of the Coast Guard on guard aboard the ship, and military policemen in uniform at the entrance into, and at the gangplank, who required all persons on entering or leaving to show passes.

Prior to his signing with the Thomas B. Robertson, he had recently made a voyage in a convoy on a vessel that carried war supplies to Murmansk, Russia, and unloaded them there, and returned to this country.

Petitioner was not informed at the time he signed the articles of agreement, or upon his arrival on the vessel, by the captain of the vessel, or anyone else, that he would be subject to military law.

The sole issue in the case is whether a civilian cook employed under the foregoing circumstances is subject to trial by court-martial of the United States Army for desertion.

A civilian is presumed not to be a person subject to military law, and the party asserting military jurisdiction over him has the burden of proving such jurisdiction, and must point to a valid federal statute which confers it. A court-martial, under the laws of the United States, is a court of special and limited jurisdiction. It has no jurisdiction beyond that given by the statute which confers it, and the civil courts should not, therefore, surrender a civilian to the jurisdiction of the military in doubtful cases, or in cases not clearly covered by the words of the statute. The civil courts may not surrender a civilian to the jurisdiction of the military for expediency, convenience or even necessity, for to do so would destroy those constitutional rights and privileges guaranteed to citizens of this country.

The constitutional authority for the exercise of military jurisdiction over certain classes of civilians is contained in the Fifth Amendment to the Constitution, which provides in part, "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger;" (Emphasis added.) Under the power granted in Section 8, Article 1, of the Constitution, and under the foregoing provisions of the Fifth Amendment, Congress enacted the Articles of War for the government of the army. Act of June 4, 1920, subchapter II, section 1, 41 Stat. 787, 10 U.S.C.A. §§ 1471-1593. The validity of the act is well established. Ex Parte Gerlach, D.C.S.C.N.Y. 1917, 247 F. 616; Ex Parte Reed, 100 U.S. 13, 25 L.Ed. 538; Dynes v. Hoover, 20 How. 65, 15 L.Ed. 838.

Article 2 of the Articles of War, 10 U.S.C.A. § 1473, so far as it is relevant to the issue involved in this proceeding, provides: "The following persons are subject to these articles and shall be understood as included in the term `any person subject to military law,' or `persons subject to military...