Hunsaker v. Ridgely, Civ. No. 617.

Decision Date13 September 1949
Docket NumberCiv. No. 617.
PartiesHUNSAKER v. RIDGELY.
CourtU.S. District Court — District of Maine

Henry M. Fuller, Portsmouth, N. H., for petitioner.

Alton A. Lessard, U. S. Atty., Portland, Maine, Edward J. Harrigan, Asst. U. S. Atty., Portland, Maine, for respondent.

CLIFFORD, District Judge.

This is a proceeding brought pursuant to the provisions of the United States Code Annotated, Title 28, Chapter 153, to determine whether a writ of habeas corpus should issue. The petitioner prays that the writ issue discharging him from the custody of the Commandant of the United States Naval Disciplinary Barracks at Kittery, Maine, where he is presently confined following his conviction by general court martial on the charge of "Scandalous Conduct Tending to the Destruction of Good Morals".

The petitioner filed the within petition on July 25, 1949. On that date the Court conferred with his attorney and with the United States Attorney concerning the filing of briefs and evidence, and other matters relating to the determination of the case by the Court. This Court on August 1, 1949, issued an order to show cause why the writ should not be granted as prayed. Return to this order was made by respondent on August 9, 1949.

Counsel for both petitioner and respondent presented briefs on August 16, 1949, and reply briefs on August 29, 1949, with various exhibits, consisting of records, certificates and other documents, filed pursuant to a stipulation made on August 12, 1949, by the parties. Additional papers not listed in the stipulation, but filed by agreement of the parties, were a notice of separation of petitioner from the United States Naval Service (marked Exhibit No. 1) together with a correction notice (marked Petitioner's Exhibit 5); a certified copy of a letter dated July 25, 1944, appointing petitioner to the rank of ensign in the United States Naval Reserve, and closing out his enlisted record; and also a certified copy of Naval Regulation H6206, relating to the termination of enlisted status upon appointment as a commissioned officer. It was agreed by counsel that all facts necessary for the proper determination of this case were included in the record and the exhibits thus filed with the Court.

The petitioner, while serving as a lieutenant (junior grade), United States Navy, was brought to trial on September 9, 1948, before a legally constituted general court martial, duly convened at the United States Receiving Station, Washington, D. C., by order of the Commandant, Potomac River Command. The charges preferred against petitioner, all alleging "Scandalous Conduct Tending to the Destruction of Good Morals", were three:

(1) An original charge, with five specifications
(2) A first additional charge, with three specifications
(3) A second additional charge, with six specifications.

(A specification is the allegation of a distinct offense in support of the general charge, and is comparable to a count in a civilian indictment.)

At the beginning of the trial, the convening authority directed that a nolle prosequi be entered to the second additional charge and the six specifications thereunder.

The petitioner was duly arraigned and convicted by the general court martial of the original charge and the first additional charge, and of all specifications or offenses under both charges. He was sentenced to be dismissed from the United States Naval Service and to be imprisoned at hard labor for a period of five years. The convening authority approved the proceedings, findings, and sentence, but reduced the period of confinement to four years.

On February 14, 1949, the Secretary of the Navy set aside the findings of the original charge and the five specifications thereunder, and the action of the convening authority thereon, but confirmed the findings of the first additional charge and the three specifications thereunder, as well as the action of the convening authority thereon, and thereupon reduced the period of imprisonment at hard labor to twenty-four months. The petitioner has been since confined pursuant to this sentence.

There is left for the consideration of this Court only the first additional charge of "Scandalous Conduct Tending to the Destruction of Good Morals," and the three specifications thereunder. These three specifications allege offenses committed on the following dates:

(1) September 20, 1946 (2) September 20, 1946 (3) September 27, 1947.

On February 17, 1949, the petitioner filed a petition for habeas corpus in the District Court in the District of Columbia, which petition was denied upon the ground, among others, that the petitioner was not within the custody of the then respondent. An appeal was taken in this action but was subsequently withdrawn.

Neither the constitution, the convening, nor the regularity of the proceedings of the court martial, in this case, is assailed; and it is admitted that the prisoner was an officer in the United States Navy at the time of the alleged commission of the third offense or specification. The record discloses that competent, relevant, and material evidence was introduced at the court martial which independently proved the commission of each crime alleged in the three specifications with which this Court is concerned.

The petitioner contends that the general court martial was without jurisdiction to try him for two of the three specifications, although he admits the jurisdiction of the court martial over the third specification. He asserts that the lack of jurisdiction over two specifications renders the proceedings of the general court martial void in its entirety, and that, therefore, he is illegally detained and entitled to the relief prayed for.

The petitioner, in support of his contention that the general court martial was without jurisdiction to try him for two of the three specifications, relies upon the case of United States ex rel. Hirshberg v. Cooke, 1949, 336 U.S. 210, 69 S.Ct. 530. In this case the petitioner, an enlisted man, was granted an honorable discharge from the Navy on March 26, 1946. He reenlisted in the Navy the following day. Approximately one year thereafter charges were preferred against him, based upon offenses allegedly committed during the previous period of enlistment. He was arraigned before a legally constituted general court martial, was tried, convicted and sentenced. In a habeas corpus proceeding, a Federal District Court, United States ex rel. Hirshberg v. Malanaphy, 73 F.Supp. 990, held the judgment void and ordered his release from custody. The Court of Appeals reversed, 2 Cir., 168 F.2d 503. The Supreme Court granted certiorari, 335 U.S. 842, 69 S.Ct. 66, and the Court of Appeals was reversed, in an unanimous opinion of the Supreme Court, holding, in effect, that a court martial has no jurisdiction to try an enlisted man for offenses committed during a prior enlistment, terminated by an honorable discharge, even though he reenlisted on the day following discharge.

Although the petitioner, in the instant case, denies the jurisdiction of the court martial over the first two specifications, he cites no cases in support of his contention...

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3 cases
  • Levy v. Parker
    • United States
    • U.S. Court of Appeals — Third Circuit
    • April 18, 1973
    ...a court-martial conviction and sentence. Carter v. McClaughry, 183 U.S. 365, 384-385, 22 S.Ct. 181, 46 L.Ed. 236 (1902); Hunsaker v. Ridgely, 85 F. Supp. 757 (D.Me.1949). However, the rule is not jurisdictional in nature. Rather, its application is discretionary. Benton v. Maryland, 395 U.S......
  • Georgia Railroad & Banking Co. v. Redwine
    • United States
    • U.S. District Court — Northern District of Georgia
    • October 3, 1949
  • State v. Swilley, 78,856
    • United States
    • Kansas Court of Appeals
    • September 18, 1998
    ...of a distinct offense in support of the general charge, and is comparable to a count in a civilian indictment." Hunsaker v. Ridgely, 85 F.Supp. 757, 758 (S.D.Me.1949). Here, a general court-martial found Swilley guilty on the general charge and on two of the underlying specifications involv......

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