Ex parte Mason
| Decision Date | 01 October 1881 |
| Parties | EX PARTE MASON |
| Court | U.S. Supreme Court |
PETITION for a writ of habeas corpus and a certiorari.
The case is stated in the opinion of the court.
Mr. James M. Lyddy for the petitioner.
Mr. Asa Bird Gardner, contra.
This is a petition for a writ of habeas corpus to release John A. Mason, the petitioner, from confinement in the Albany penitentiary under a sentence by a general court-martial. The facts are these: Mason was a sergeant in Battery B of the Second Regiment of Artillery, in the army of the United States. He was tried by a general court-martial on the charge of violating the sixty-second Article of War, in that 'having been ordered with his battery from Washington Barracks for guard duty at the United States jail, in the city of Washington, D. C., and having arrived at said jail for said duty,' he 'did thereupon, with intent to kill Charles J. Guiteau, a prisoner then confined under the authority of the United States in said jail, wilfully and maliciously discharge his musket, loaded with ball-cartridge, at said Guiteau, through a window of said jail, ino a cell then occupied by the said Guiteau.' Upon a trial duly had he was found guilty of the charge according to the specification, and sentenced 'to be dishonorably discharged from the service of the United States, with the loss of all pay and allowances . . . due and to become due to him, and then to be confined at hard labor in such penitentiary as the proper authorities may direct for eight years.' The Albany penitentiary was designated in due from as the place of confinement under this sentence.
A question which presents itself at the outset is whether this court has jurisdiction to issue such a writ as is asked, inasmuch as it has no power to review the judgments of courts-martial. Upon this question there is not entire unanimity of opinion among the members of the court, and we purposely withhold any decision at this time in respect to it. We all agree, however, that if a writ might issue, there could be no discharge under it if the court-martial had jurisdiction to try the offender for the offence with which he was charged, and the sentence was one which the court could, under the law, pronounce.
The sixty-second Article of War, under which Mason was tried, is as follows:——
'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 foregoing Articles of War, are to be taken cognizance of by a general or a regimental, garrison, or field officers' court-martial, according to the nature and degree of the offence, and punished at the discretion of the court.'
The offence charged in this case was clearly one to the prejudice of good order and military discipline.
The offender was a soldier in the army of the United States. As such, according to the specifications of the charge made against him, he was ordered on guard duty at the United States jail, in Washington, and while on duty he wilfully and maliciously discharged his musket, with intent to kill a prisoner confined in the jail under the authority of the United States. The gravamen of the military offence is that, while standing guard as a soldier over a jail in which a prisoner was confined, the accused wilfully and maliciously attempted to kill the prisoner. Shooting with intent to kill is a civil crime, but shooting by a soldier of the army standing guard over a prison, with intent to kill a prisoner confined therein, is not only a crime against society, but an atrocious breach of military discipline. While the prisoner who was shot at was not himself connected with the military service, the soldier who fired the shot was on military duty at the time, and the shooting was in direct violation of the orders under which he was acting. It follows that the crime charged, and for which the trial was had, was not simply an assault with intent to kill, but an assault by a soldier on duty with intent to kill a prisoner confined in a jail over which he was standing guard.
In our opinion the fifty-eight and fifty-ninth Articles of War have no application to the case. The fifty-eighth is as follows:——
'In time of war, insurrection, or rebellion,...
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