Ex parte Dickey

• Decision Date: 10 April 1913
• Docket Number: 251.
• Citation: 204 F. 322
• Parties: Ex parte DICKEY.
• Court: U.S. District Court — District of Maine

204 F. 322

Ex parte DICKEY.

No. 251.

United States District Court, D. Maine.

April 10, 1913

Page Bartlett & Mitchell, of Portsmouth, N.H., for petitioner.

Robert T. Whitehouse, U.S. Dist. Atty., of Portland, Me.

HALE District Judge.

The petition of William W. Dickey shows that on the 2d day of October, 1912, he was an enlisted man in the United States navy, occupying the position of chief commissary steward on board the United States battleship Kansas; that he continued to be in such service of the United States up to December 2 1912, when a court-martial was held on board the United States ship Louisiana; that he was tried before such court-martial for scandalous conduct tending to the destruction of good morals; that the specification under this charge set out at length a statement sworn to by the petitioner on the 13th day of November, 1912, before Commander Frederick B. Bassett, Jr., acting as commanding officer of the United States ship Utah, in which statement the petitioner swore that he had at several times, detailed therein, practiced frauds on the United States in conjunction with representatives of certain government contractors named therein, from whom supplies for the navy were purchased, and that such frauds had netted him money, amounting to about $2,000 in certain cases named in said sworn statement; that thereafterwards, on November 19, 1912, while a witness under oath before a duly constituted court of inquiry, the petitioner gave certain testimony, set out in the specification, in which he denied the truth of his previous statement, and testified that he had never at any time received any money from contractors, and that his former statement was untrue. The specification then concludes:

'And that the said William W. Dickey, chief commissary steward United States navy, did by submitting the said written statement or confession, and by testifying as above shown make statements inconsistent the one with the other, and one of which must have been, and was, known by him to be false and misleading, and intended to deceive and defeat the ends of justice.'

Upon this charge and specification the court-martial found the petitioner guilty, and sentenced him to five years at hard labor, deprivation of his pay for that time, and dishonorable discharge at the end of the five years, the same being under the provisions of article 1797 of the Navy Regulations, as changed by order of the Secretary of the Navy November 9, 1911. The petitioner is now confined pursuant to this sentence in the United States naval prison at Portsmouth Navy Yard, in Kittery, in the District of Maine. The petitioner now prays for the issuance of a writ of habeas corpus for substantially the following reasons:

1. That the charge upon which he was tried did not set out any offense cognizable by a court-martial, or known to civil or military law. 2. It was therefore in contravention of article 43 for the government and regulation of the navy, which provides that the accused should be furnished with a true copy of the charges against him, and specification of the same at the time he was put under arrest. 3. That a court-martial is a court of limited and special jurisdiction; and, unless article 43 was complied with, it had no jurisdiction to punish the petitioner. 4. That the petitioner's conviction and imprisonment is in contravention of article 6 of the amendments to the Constitution of the United States, because the specification of the charge shows that the petitioner made one statement on November 13, 1912, and a contradictory statement on November 22, 1912, without alleging which statement was true or which was false, and that as the specification did not set up for which statement the petitioner was being tried, he has therefore never been advised of the offense for which he was convicted. 5. That the court-martial before whom the petitioner was tried did not have authority to impose the sentence imposed upon him, for certain reason set forth relating to the punishment imposed.

At the hearing before me, upon the order to show cause why the writ should not issue, the petitioner based his demand for the writ upon the ground that he had never been tried upon any clear, definite, and distinct charge, which set forth an offense known either to the civil or military law, and that hence the court had no jurisdiction to try him and to punish him. He complains that he was charged with making a false statement, either on November 13, 1912, or November 22, 1912 that he never has been informed as to which statement was false, and that therefore the proceedings have not complied with article 43 for the government of the navy (U.S. Comp. St. 1901, p. 1117). Upon examination of the charge on which the petitioner was tried, it will be found that it did not attempt to charge the petitioner in the court-martial with 'perjury,' which offense is defined under article 14 of the articles for the government of the navy (U.S. Comp. St. 1901, p. 1108) as a distinct offense, namely, the making of an oath to any fact or writing, knowing such oath to be false, for the purpose of obtaining, or aiding others to obtain, the approval or allowance of any claim against the United States, or officer thereof. It is clear that the pleadings upon which the accused was tried in the court-martial alleged a lesser offense than 'perjury.' The offense set up was 'scandalous conduct tending to the destruction of good morals. ' Under this charge the specification made a substantial charge of false swearing, although it did not set forth the charge with the clearness and definiteness required in a civil court. This general charge is well known in courts-martial, and authorized by article 8 of the articles for the government of the navy (U.S. Comp. St. 1901, p. 1105), which, under the head of offenses punishable at the discretion of the court-martial, provides as...