Ex parte Jochen

• Decision Date: 08 April 1919
• Docket Number: D.L. 267
• Citation: 257 F. 200
• Parties: Ex parte JOCHEN.
• Court: U.S. District Court — Southern District of Texas

257 F. 200

Ex parte JOCHEN.

D.L. 267

United States District Court, S.D. Texas.

April 8, 1919

Upon application for writ of habeas corpus by Edward E. Jochen, it appearing therefrom that applicant is in custody at Brownsville, Tex., more than 300 miles from Houston, where the court is sitting, a rule was issued requiring the respondent, Col. Frank Keller, to show cause February 28 1919, at Houston, Tex., why writ of habeas corpus should not issue. To this rule respondent made return, justifying the detention of applicant upon the following state of facts:

That the defendant, as commanding officer of United States troops at Brownsville, Tex., has the applicant in confinement. That applicant from February 12, 1917, to December 24, 1918 served with the United States troops in the territory embraced in the Brownsville district, namely, from the mouth of the Rio Grande river to Arroyo Del Tigre, as superintendent quartermaster corps, during all of which time applicant was under the direct orders of the commander of the Brownsville district. That on, to wit, December 23, 1918, he was charged with having, during the time of his service from September 1, 1917, to December 15, 1918, committed crimes and offenses in violation of the Articles of War (Comp. St. Sec 2308a), and was taken into custody by the authority of respondent. That these charges were duly referred for trial to the General Court-Martial, duly appointed to sit at Brownsville. That the applicant was duly arraigned and tried by said court, and is now held in confinement awaiting the review of the said proceedings, and that in all matters relating to the arrest, confinement, and trial of the applicant the rules regulating military procedure have been complied with. That the military jurisdiction over applicant as to arrest, detention, and trial is asserted upon the ground that applicant is a person subject to military law being as claimed by respondent, though a civilian, a person coming within the scope and meaning of subdivision D of the Second Article of War, which provides as follows:

'All retainers to the camp and all persons accompanying or serving with the armies of the United States without the territorial jurisdiction of the United States, and in time of war, all retainers and persons accompanying or serving with the armies of the United States in the field, both within and without the territorial jurisdiction of the United States, though not otherwise subject to these articles.'

That during the period in which the applicant is charged to have committed the crimes and offenses, the United States was at war, and that during all of said time the armies of the United States with which the applicant was serving, to wit troops in the Brownsville district, were in the field. That the general orders of the War Department, section 319, Compilation 1881 to 1915, also section 2193, Manual Quartermaster's Corps, United States Army, provides as follows:

'Field service is defined to be service in mobilization, concentration, instruction or maneuver camps, as well as service in campaign, simulated campaign, or on the march.'

It further appears from the application and the return that, on some of the offenses with which Jochen is held to the military court, he is also charged in this court in the Brownsville division, and has been bound over by the commissioner to the grand jury. It appears with reference to this feature of the case, as shown in the supporting affidavits, that the arrest by the civil court was made on information from the military authorities, and after the military authorities had taken the applicant into actual or constructive custody, and it is apparent that, in so far as the question of comity arises between the military and the civil tribunal, as to many of the matters with which he is charged by the court-martial, no jurisdiction has ever attached in the civil court, and that as to those of which the civil court has jurisdiction the same was acquired under such circumstances as that, if comity alone operated to dispose of this matter, it would require that applicant not be taken from the military control in which he now is.

That the duty of the troops in the Brownsville district is to patrol the Texas-Mexican border, for the preservation of life and property in the district, and to enforce the laws of the United States. That, in the performance of said duty, outposts at frequent intervals are maintained at or near the Rio Grande river. That, as supports and reserves for said outposts, squadron stations are maintained at Brownsville, San Benito, Mercedes, McAllen, Sam Fordyce, and Ft. Ringgold. That they are all equipped for field service, wear the field uniform, are supplied under conditions for troops in the field, are housed in the outposts in tents or huts, and at the squadron stations--with few exceptions-- in barracks of the cantonment type, and the troops are designated as troops in the field. That the commander of said district had at all times had authority in certain contingencies to cross the river into Mexico, and troops had been prepared to make such crossings at an instant's notice. That all administrative orders relating to said troops are given to them as troops in the field. That since 1915 there has been considerable unrest on the border. What were known as bandit raids frequently occurred, and numerous fights took place between bandits, soldiers, and civilian officers, extending to the wrecking of a passenger train and the killing and wounding of several persons. That during 1916, and up to the present, there had been about five distinct invasions of Mexico by our troops following bandits therein. That the soldiers have been greatly needed on the border to protect life and property, and that they are at all times maintained and equipped for combat with bandits and law violators in the border section.

Attached to the return among other affidavits are affidavits of Col. Hamilton Bowie, commanding United States troops at Ft. Ringgold, Tex., and of Col. Herbert J. Slocum, commander of the Brownsville district troops from January, 1918, to October, 1918. They establish that, during the time the latter was in command of the district, one officer was killed in Mexico, and about ten enlisted men were killed by fire from Mexico; that at many times it was unsafe to water the horses in the river; that in the military sense the troops were ready and looking for a fight at any minute; their duties were the same as if opposing a foe, and the troops were frequently on the firing line; that the war with Germany made it necessary for these troops to be in the field along the Southern Texas border for protection against German influences in Mexico, which at times assumed a serious and dangerous aspect, requiring our troops to be on constant patrol duty in the field, at all times fully armed and equipped. By his affidavit, Col. Bowie establishes that the troops under his command at Ft. Ringgold were on 'field duty' as defined in the army regulations, as distinguished from garrison duty; that, of the four troops of cavalry under his command, one was constantly on outpost duty on the international border at distances of from 13 to 25 miles from Ringgold, and that frequent patrols were made along the border, and guards were at all times maintained; that these troops were equipped for field service with pack trains at all times ready, together with a wireless station for communications; and that an intelligence department was maintained and civil scouts employed to procure and report information of military value. At the time the troops stationed at Ft. Ringgold, and detached from that station, they were occupied with guard duty, patrols, target practice, and care of animals, incident to field service, to the exclusion of ceremonies and drills of precision, which are features of garrison service. All matters of fact thus stated in support of the return, I find to be true.

James A. Graham, of Brownsville, Tex., for applicant.

Major William C. Bedal, Judge Advocate, for respondent Col. Frank Keller.

HUTCHESON, District Judge (after stating the facts as above).

In every inquiry by the courts into the assertion and exercise of military jurisdiction, the question which arises at the threshold, and must be first determined, is: What kind of jurisdiction does the military seek to assert? As to this question, there has not, since the great case of Ex parte Milligan, 4 Wall. 141, 18 L.Ed. 281, been any difficulty in arriving at the fundamental principles which determine it, but only in applying those principles to the particular states of fact. In that case the court said:

'There are under the Constitution three kinds of military jurisdiction: One to be exercised both in peace and war; another to be exercised in time of foreign war without the boundaries of the United States, or in time of rebellion and civil war within the states or districts occupied by rebels treated as belligerents; and a third to be exercised in time of invasion or insurrection within the limits of the United States, or during rebellion within the limits of states maintaining adhesion to the national government, when the public danger requires its exercise. The first of these may be called jurisdiction under 'military law,' and is found in acts of Congress prescribing rules and articles of war, or otherwise providing for the government of the national forces; the second may be distinguished as 'military government,' superseding, as far as may be deemed expedient, the local law, and exercised by the military commander under the direction of the President, with the express or implied sanction of Congress; while the third may be denominated 'martial law proper,' and is

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