Caldwell v. Parker, 636

• Decision Date: 19 April 1920
• Docket Number: No. 636,636
• Citation: 40 S.Ct. 388,64 L.Ed. 621,252 U.S. 376
• Parties: CALDWELL v. PARKER, Sheriff
• Court: U.S. Supreme Court

252 U.S. 376

40 S.Ct. 388

64 L.Ed. 621

CALDWELL

v PARKER, Sheriff.

No. 636.

Argued March 4 and 5, 1920.

Decided April 19, 1920.

Messrs. Henry E. Davis, of Washington, D. C., and Charles D. Kline, of Anniston, Ala., for appellant.

[Argument of Counsel from pages 377-379 intentionally omitted] Messrs. Neil P. Sterne, of Anniston, Ala., and J. Q. Smith, of Birmingham, Ala., for appellee.

Mr. Chief Justice WHITE delivered the opinion of the Court.

Pending the existence of a state of war with Germany the appellant, a soldier in the army of the United States serving in a camp in Alabama, was tried and convicted for the murder of a civilian at a place within the jurisi ction of the state and not within the confines of any camp or place subject to the control of the civil or military authorities of the United States. The conviction was reviewed and affirmed by the Supreme Court of Alabama and was re-examined and reaffirmed on rehearing.

The case is here to reverse the action of the court below in refusing on writ of habeas corpus a discharge which was prayed on the ground that, under the circumstances stated, the sentence was void because the state court had no jurisdiction whatever over the subject of the commission of the crime, since under the Constitution and laws of the United States that power was exclusively vested in a court-martial.

As there was no demand by the military authorities for the surrender of the accused, what would have been the effect of such a demand, if made, is not before us. The contention of a total absence of jurisdiction in the state court is supported in argument, not only by the appellant, but also by the United States in a brief which it has filed as amicus curiae. These arguments, while differing in forms of expression, rest upon the broad assumption that Congress in re-enacting the Articles of War in 1916 (Comp. St. § 2308a), by an exercise of constitutional authority, vested in the military courts during a state of war exclusive jurisdiction to try and punish persons in the military service for offenses committed by them which were violative of the law of the several states. In other words, the proposition is that under the act of 1916, by mere operation of a declaration of war, the states were completely stripped of authority to try and punish for virtually all offenses against their laws committed by persons in the military service. As in both arguments differences between the provisions of the act of 1916 and the previous Articles are relied upon to sustain the accomplishment of the result contended for, we must briefly consider the prior Articles before we come to test the correctness of the conclusion sought to be drawn from the Articles of 1916.

The first Articles of War were adopted in 1775. By them the generic power of courts-martial was established as follows:

'L. All crimes, not capital, and all disorders and neglects, which officers and soldiers may be guilty of, to the prejudice of good order and military discipline, though not mentioned in the Articles of War, are to be taken cognizance of by general or regimental court-martial, according to the nature and degree of the offense, and be punished at their discretion.'

It cannot be disputed that the effect of this grant was to confer upon courts-martial as to offenses inherently military an exclusive authority to try and punish. In so far, however, as acts which were criminal under the state law but which became subject to military authority because they could also appropriately be treated as prejudicial to good order and military discipline, a concurrent power necessarily arose, although no provision was made in the Articles regulating its exercise. But this omission was provided for in article 1 of section X of the revised Articles adopted in 1776, as follows:

'Whenever an officer or soldier shall be accused of a capital crime, or of having used violence, or of having committed any offense against the persons or property of the good people of any of the United American States, such as is punishable by the known laws of the land, the commanding officer and officers of every regiment, troop, or party, to which the person or persons so accused shall belong, are hereby required, upon application duly made, or in behalf of the party or parties, to use his utmost endeavors to deliver over such accused person or persons to the civil magistrate; and likewise to be aiding and assisting to the officers of justice in apprehending and securing the person or persons so accused, in order to bring them to a trial. If any commanding officer or officers shall willfully neglect or shall refuse, upon the application aforsaid, to deliver over such accused person or persons to the civil magistrates, or to be aiding or assisting to the officers of justice in apprehending such person or persons, the officer or officers so offending shall be cashiered.'

In view of the terms of this article and the fact that it was drawn from the British Articles, where the supremacy of the civil law had long prevailed, it results that its provisions gave the civil courts, if not supremacy of jurisdiction, at least a primary power to proceed against military offenders violating the civil law, although the same acts were concurrently within the jurisdiction of the military courts because of their tendency to be prejudicial to good order and military discipline.

And in harmony with this view, the articles in question were applied up to 1806, in which year they were re-enacted without change as articles 99 and 33 of that revision, and were in force in 1863, in the Enrollment Act of which year it was provided (Act of March 3, 1863, § 30, 12 Stat. 736):

'That in time of war, insurrection, or rebellion, murder, assault and battery with an intent to kill, manslaughter, mayhem, wounding by shooting or stabbing with an intent to commit murder, robbery, arson, burglary, rape, assault and battery with an intent to commit rape, and larceny, shall the punishable by the sentence of a general court-martial or military commission, when committed by persons who are in the military service of the United States, and subject to the articles of war; and the punishments for such offenses shall never be less than those inflicted by the laws of the state, territory, or district in which they may have been committed.'

It is to be observed that by this section there was given to courts-martial, under the conditions mentioned, power to punish for capital crimes, from which their authority had been from 1775 expressly excluded; and power was also given to deal, under the conditions stated and in the manner specifled, with other enumerated offenses over which they had not prior to the passage of the act had jurisdiction, presumably because such acts had not in practice been treated as within the grant of authority to deal with them as prejudical to good order and military discipline.

In 1874, when the Articles of War were revised and re-enacted (Rev. Stat. U. S. § 1342), the generic grant of power to punish acts prejudicial to good order and military discipline was re-expressed in artice 62, substantially as it existed from 1775. The provisions of section 30 of the act of 1863, supra, were in so many words made to constitute article 58, and the duty put upon military officials to surrender to state officers on demand persons in the military service charged with offenses against the state, was re-enacted in article 59, qualified, however, with the words, 'except in time of war.' Thus the Articles stood until they were re-enacted in the revision of 1916, as follows:

The general grant of authority as to acts prejudicial to good order and military discipline was re-enacted in article 96, substantially as it had obtained from the beginning. The capital offenses of murder and rape, as enumerated in section 30 of the act of 1863, were...