Anderson v. Crawford, 5407.

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Citation: 265 F. 504
• Docket Number: 5407.
• Parties: ANDERSON, Warden, v. CRAWFORD.
• Decision Date: 29 April 1920

265 F. 504

ANDERSON, Warden, v. CRAWFORD.

No. 5407.

United States Court of Appeals, Eighth Circuit.

April 29, 1920

L. S Harvey, Asst. U.S. Atty., of Kansas City, Kan. (Fred Robertson, U.S. Atty., of Kansas City, Kan., on the brief) for appellant.

Lee Bond, of Leavenworth, Kan., for appellee.

Before SANBORN, Circuit Judge, and LEWIS and MUNGER, District Judges.

MUNGER District Judge.

The appellant, as warden of the United States penitentiary at Leavenworth, Kan., appeals from a judgment in a habeas corpus proceeding ordering the discharge of the appellee from further imprisonment. The case was heard upon the petition for the writ and appellant's motion to dismiss the petition, and when the motion was denied appellant refused to plead further. The motion attacked the petition upon the ground that it stated no cause for relief. The petition disclosed that appellee was employed as a civilian teamster attached to the Quartermaster Corps of that part of the United States Army which, under command of General Pershing in 1916 and 1917 was conducting a punitive expedition in the state of Mexico, seeking to capture a band of Mexicans who had made an attack in March, 1916, upon the town of Columbus, N.M. Appellee was arrested on January 8, 1917, at Colonia Dublan, state of Mexico, by the military authorities of the United States, and was tried on February 4, 1917 before a general court-martial convened at that place. As stated in the record of conviction the charge was as follows:

'Charge: Assault and battery, with intent to kill, to the prejudice of good order and military discipline.

'Specification 1: In that Civilian Teamster J. D. Crawford, Q. M. Corps, did feloniously assault Civilian Teamster Pat Watkins, Q. M. Corps, by cutting him with a knife with intent to kill. This at Camp Dublan, Mexico, on the 8th of January, 1917.

'Specification 2: In that Civilian Teamster J. D. Crawford, Q. M. Corps, did feloniously assault Civilian Teamster Pat Watkins, Q. M. Corps, by shooting at him with a pistol with intent to kill. This at Camp Dublan, Mexico, on the 8th of January, 1917.'

Appellee pleaded not guilty, and the findings of the court-martial were that he was guilty of the charge in the first specification, except as to the words 'with intent to kill,' and as to those words not guilty, and was guilty of the charge in the second specification. The sentence, as approved by the commanding officer, was that he should be imprisoned for five years in the United States penitentiary at Leavenworth, Kan., and he was placed in the custody of appellant, as warden of the penitentiary, under a commitment pursuant to the sentence. Appellee claimed to be illegally restrained of his liberty, because he had been discharged as a teamster before the time of his arrest, and because the United States was not at war with Mexico or any other country at the time of the assault, or at the times of his trial and conviction, and because no court-martial had jurisdiction to try him or to pass sentence upon him. The authority claimed in support of the proceedings of the court-martial is found in articles 63 and 58 of the Articles of War (R.S. Sec. 1342, 4 U.S.Comp.Stats.Ann. 1916, pp. 3941, 3942), which were then in force, and which are as follows:

Article 63: 'All retainers to the camp, and all persons serving with the armies of the United States in the field, though not enlisted soldiers, are to be subject to orders, according to the rules and discipline of war.'

Article 58: 'In time of war, insurrection, or rebellion, larceny, robbery, burglary, arson, mayhem, manslaughter, murder, assault and battery with an intent to kill, wounding, by shooting or stabbing, with an intent to commit murder, rape or assault and battery with an intent to commit rape, shall be punishable by the sentence of a general court-martial, when committed by persons in the military service of the United States, and the punishment in any such case shall not be less than the punishment provided, for the like offense, by the laws of the state, territory, or district in which such offense may have been committed.'

While the chief question made in the arguments is whether there then existed such a state of war as justified the subjection of appellant to trial by court-martial for the offense alleged against him, the record discloses another question that lies at the threshold of the case, and that must necessarily be considered and that is, the jurisdiction of the court-martial, whether it was or was not a 'time of war,' and whether or not appellee was still a retainer of the camp or a person serving with the army in the field.

In Deming v. McClaughry, 113 F. 639, 650, 51 C.C.A. 349, 360, it was said by this court:

'A court-martial is a court of limited jurisdiction. It is a creature of the statute, a temporary judicial body authorized to exist by acts of Congress under specified circumstances for a specific purpose. It has no power or jurisdiction which the statutes do not confer upon it. The Articles of War specify the officers who are empowered to convene these courts (articles 72, 73, 74, 81, 82), the officers who may compose them (articles 75, 76, 77, 78, 80), and the persons and charges which they are empowered to try (articles 77, 78, 80, 81, 82, 83). It necessarily follows that the jurisdiction of every court-martial, and hence the validity of each of its judgments, is conditioned by these indispensable prerequisites: (1) That it was convened by an officer empowered by the statutes to call it; (2) that the officers whom he commanded to sit upon it were of those whom he was authorized by the Articles of War to detail for that purpose; (3) that the court thus constituted was invested by the acts of Congress with power to try the person and the offense charged; and (4) that its sentence was in accordance with the Revised Statutes. The absence of any of these indispensable conditions renders the judgment and sentence of a court-martial coram non judice, and absolutely void, because such a judgment and sentence is rendered without authority of law and without jurisdiction. Runkle v. U.S., 122 U.S. 543, 546, 7 Sup.Ct. 1141, 30 L.Ed. 1167; Mills v. Martin, 19 Johns. 7, 30; Wise v. Withers, 3 Cranch, 331, 2 L.Ed. 457; Ex parte Watkins, 3 Pet. 193, 207, 7 L.Ed. 650; Dynes v. Hoover, 20 How. 65, 80, 15 L.Ed. 838.'

It will be observed that Congress did not confer upon courts-martial the trial of all offenses under article 58. Such well-known common-law crimes as bribery, embezzlement, perjury, and forgery are not mentioned. The offense of wounding is...