Ex Parte King

• Decision Date: 24 September 1917
• Citation: 246 F. 868
• Parties: Ex parte KING.
• Court: U.S. District Court — Eastern District of Kentucky

246 F. 868

Ex parte KING.

United States District Court, E.D. Kentucky.

September 24, 1917

W. C G. Hobbs, of Lexington, Ky., for petitioner.

Thos D. Slattery, U.S. Atty., of Covington, Ky., for the United States.

COCHRAN District Judge.

This is a writ of habeas corpus that is before me. It was issued upon the petition of Simon King, father of George King, the person held in custody. He is so held by the jailer of Campbell county, in this district, to whom the writ was directed, upon a charge of murder. He was first committed by the county judge of that county upon an examining trial, and since then he has been indicted by the grand jury thereof for that offense. He is a private in Company C, Second Kentucky Infantry, National Guards, and subject to military law, as provided by article 2 of Articles of War, section 2308a, United States Compiled Statutes 1916, p. 3949, and has been since April 13, 1917. The person whom he is charged with murdering was Christopher Kolhoven, then a policeman of the city of Newport, in that county. It is charged that he did so on July 11, 1917. The claim is that the killing took place on one of the streets of that city, and that it was not done in the performance of any duty as a soldier.

On July 28, 1917, the captain of his company preferred the charge against him of having committed the crime of murder, and Gen Roger D. Williams, commander of the brigade to which the Second Kentucky Infantry belongs, has filed an intervening petition, praying that the prisoner be delivered to the military authorities, to be tried by a courtmartial on the charge so preferred against him. The commonwealth of Kentucky has appeared by the commonwealth's attorney of Campbell county, and resists the delivery of the prisoner to the military authorities. The prisoner claims that the killing was committed by him in the performance of his duty as a soldier. The time of the killing was a time of war. The United States has been in a state of war with Germany since April 6, 1917.

The question which the case presents for consideration is whether the Campbell circuit court has jurisdiction now to try him for the offense for which he has been indicted. It is not whether it had jurisdiction to indict him and may not hereafter have jurisdiction to try him. It is not necessary to determine this question at the present hearing. The question before me may be narrowed to that stated, to wit Whether that court has jurisdiction to try him under existing conditions, and to that end to withhold his custody from the military authorities.

The solution of the question depends upon the true construction of the articles of war in force at the time of the killing. They are to be found in section 3, c. 418, 39 Stat. 650, being Act Aug. 29, 1916 (U.S. Compiled Stat. 1916, Sec. 2308a), which takes the place of section 1342, U.S. Rev. Stat. It is thereby provided that section 1342 be amended to read as therein provided. It is well to approach its pertinent provisions from the viewpoint of how the matter stood under section 1342 as it formerly was and here from the viewpoint of how it stood in time of peace. It stood then, as under the present statute, differently in time of war from what it stood in time of peace, and we are only concerned as to how it stood and stands in time of war. But it will aid in understanding how it stood and stands in time of war to understand first how it stood and stands in time of peace.

By section 1342 before it was thus amended a soldier of the United States army could be court-martialed in time of peace for offenses committed by him in violation of the criminal laws of a state or of the United States. Such jurisdiction was conferred by article 62. Thereby jurisdiction was conferred of '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. ' Under this article a capital crime could be dealt with only as a disorder or neglect prejudicial to good order and military discipline. In re Stubbs (C.C.) 133 F. 1012. A case where such jurisdiction was exercised is that of the soldier who attempted to kill the assassin, Guiteau. Ex parte Mason, 105 U.S. 696, 26 L.Ed. 1213.

The jurisdiction so conferred, however, is not exclusive, but is concurrent with that of the civil courts. Grafton v. United States, 206 U.S. 333, 348, 27 Sup.Ct. 749, 51 L.Ed. 1084, 11 Ann.Cas. 640; Franklin v. United States, 216 U.S. 559, 30 Sup.Ct. 434, 54 L.Ed. 615. And by article 59 the civil courts were given priority in the exercise of jurisdiction. It was thereby provided that:

'When any officer or soldier is accused of a capital crime, or of any offenses against the person or property of any citizen of any of the United States, which is punishable by the laws of the land, the commanding officer, and the officers of the regiment, troop, battery, company, or detachment to which the person so accused belongs are required, except in time of war upon application duly made by or on behalf of the party injured, to use their utmost endeavors to deliver him over to the civil magistrate and to aid the officers of justice in apprehending and securing him, in order to bring him to trial.'

As the requirement was that the officers specified should so do 'except in time of war,' this provision had application only to time of peace; and by virtue thereof in time of peace the military authorities were bound to give way to the civil. But this was not the only jurisdiction conferred on courts-martial of offenses against the criminal laws of a state. By article 58 they were given other jurisdiction thereof, but it is expressly limited to time of war. That article is in these words:

'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, * * * 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 for the like offense by the laws of the State, Territory, or district in which such offense may have been committed.'

It has been held by the Supreme Court in the case of Coleman v. Tennessee, 97 U.S. 509, 24 L.Ed. 1118, that, where an offense covered by this article is committed in time of war in enemy country, the military authorities have exclusive jurisdiction of the offense. There, in time of the Civil War, a federal soldier had committed the crime of murder in the state of Tennessee whilst it was in the military occupation of the United States, with a military governor at its head, appointed by the President, and, as there held, enemy's country. It was held that the soldier was not amenable to the laws of that state after it ceased to be enemy's country upon the close of the Civil War. This position was based upon the principles of international law, and not on the interpretation of the statute. Though the question was not involved therein, Mr. Justice Field considered how the matter would have been, had the crime been committed in a loyal state, which is the case we have here. It was held that it would have been otherwise. He said:

...