Ex parte Spurlock

• Decision Date: 23 June 1944
• Docket Number: Habeas Corpus No. 301.
• Citation: 66 F. Supp. 997
• Parties: Ex parte SPURLOCK.
• Court: U.S. District Court — District of Hawaii

66 F. Supp. 997

Ex parte SPURLOCK.

Habeas Corpus No. 301.

District Court, Hawaii.

June 23, 1944.

COPYRIGHT MATERIAL OMITTED

Brahan Houston (appointed by the Court), of Honolulu, T. H., for petitioner.

G. D. Crozier, U. S. Dist. Atty., and Edward A. Towse, Asst. U. S. Dist. Atty., Lieut. Col. Eugene V. Slattery, Office of the Military Governor, and Capt. Angus M. Taylor, Jr., U. S. Army, Office of the Military Governor, all of Honolulu, T. H., for respondent.

McLAUGHLIN, Judge.

This habeas corpus proceeding differs from the Duncan and White cases (Ex parte Duncan, D.C., 66 F.Supp. 976; and Ex parte White, D.C., 66 F.Supp. 982) essentially in that:

(a) It involves a period of time prior to the Battle of Midway.

(b) Here the fictitious role of "Military Governor of Hawaii" is abandoned, and forsaken is the theory that the General had the judicial powers of the courts of the Territory because the Governor of Hawaii delegated them to him on December 7, 1941.

In lieu thereof, it is advanced that martial law having been declared, the General had the total powers of government in Hawaii — executive, legislative, and judicial — and hence deeming it necessary from a military point of view, he had authority to try civilians for infractions of Territorial law in military courts.

I.

Historical Facts.

As these facts are the same as those recited under this heading in the White case and are the subject of judicial notice, it is not necessary to repeat them here.¹ It is necessary only to note that by appropriate General Orders the General had designated Lt. Col. Neal D. Franklin, J.A.G.D., and Lt. Col. John R. Hermann, Infantry, as judges of the Honolulu Provost Court during the time here involved. At this time also General Emmons was the Commanding General and so-called "Military Governor of Hawaii."

II.

Facts of Spurlock Case.

The petitioner, Fred Spurlock, was born in Alabama. After being graduated from high school he went to sea as a cook. Prior to and after the war he was employed in Hawaii as a civilian defense worker He neither has been nor is in any way connected with the armed services.

(a) In November 1941 Spurlock was ejected from a bar for disorderly conduct. He verbally protested the "bouncer's" action, and while so engaged in conversation, the "bouncer," seeing a civilian policeman coming down the street, called Spurlock's attention to the approach of the patrolman and gave him to understand that if he did not move on the policeman would be called. Spurlock took off on the run and collided with two military policemen who held him and turned him over to the civilian police officer. By the latter he was arrested and charged with assaulting a police officer. He was released upon bond, and later appeared in the District Court of Honolulu to answer to that charge. There he was told by the presiding magistrate that his case was continued and to return when so advised by his bondsman.

Spurlock heard nothing more about his case until after the outbreak of the war. On January 14, 1942, he received a document from the Provost Court of Honolulu directing him to appear in that court January 15, 1942, to answer to the charge of November 1941. On January 15, 1942, he plead "not guilty" but the Provost Court of Honolulu found him guilty as charged under Territorial law and sentenced him to five years imprisonment. Spurlock begged the presiding army officer for probation and succeeded; the prison sentence was suspended and he was placed upon probation. Neither the term nor the conditions of probation were specified. He was simply placed on probation and told to report to the Territorial probation officer, which he did.

(b) On March 24, 1942, Spurlock was involved in a fight with another civilian, which is described as a "cutting affair." This event did not occur upon a military reservation. Spurlock was arrested by the Honolulu police and charged with violating Section 5656, Revised Laws of Hawaii 1935, as amended (assault with a weapon obviously and imminently dangerous to life). He was placed in custody, told that the Provost Court did not release defendants on bond, and four days later, on March 28, 1942, was taken to the Honolulu Provost Court, which at that time occupied the Honolulu District Court premises. The Provost Court had called his case March 25, 1942, and continued it to March 28, though he did not appear on the twenty-fifth.

At this point the evidence is conflicting. There were available only two people who had any reason to recall what happened in the Spurlock case in the Provost Court on March 28, 1942. One was Spurlock himself and the other a Miss Woodside, who was a clerk-stenographer-reporter of that court.

Spurlock testified that when his case was called, Colonel Hermann, presiding as judge, said to him, "Oh, I see you are back! You are on probation, aren't you?" To this Spurlock says he replied, "Yes, sir." Next the charge was read by a civilian policeman. An officer then addressed the court saying that the Territorial probation officer had nothing to do with Spurlock's probation as he had been put on probation by the Provost Court, whereupon the Colonel promptly said, "Five years at hard labor — that is all." Spurlock said he asked to be sent into combat, but the judge replied that there was nothing more to be said, adding "Take him away." In answer to whether he asked for an attorney, Spurlock said, "No," for his January experience revealed to him that attorneys were useless in provost court, and as to witnesses he said he did not have time to ask for such as he was enroute to prison inside of five or ten minutes from the time he was taken into the crowded courtroom. Spurlock was repeatedly questioned by respondent if he had not been asked if he was guilty and if he had not said, "Yes." To both questions Spurlock repeatedly said "No." Intense cross-examination did not shake him. He appeared to know what he was talking about and to be telling the truth.

The opposing evidence does not show how many cases were handled by the Provost Court on March 28, 1942, but the calendar for that day identified by Mrs. Wist, principal clerk, Honolulu Provost Court, so that the page relating to the Spurlock case could be used later, indicated that it was a very sizable calendar. The chief clerk, Mrs. Finkboner, testified that she was not in court that day, but the usual procedure was for notes to be made on the official calendar as to the disposition of the cases; that thereafter a clerk-stenographer took that calendar with the notes on it and typed up a form for Colonel Hermann to sign. A form applying to the Spurlock matter was marked Respondent's Exhibit No. 1 for Identification. With reference to it Mrs. Finkboner said she knew and recognized Colonel Hermann's signature, and hence the document meant to her that Spurlock plead and was found guilty. The objection to the reception into evidence of this document was sustained on the grounds that as it did not come from a court of record, it did not prove itself, and further that recognition of a signature was not proof of content. This document was no more admissible into evidence to prove that Spurlock plead and was found guilty than a letter to that effect from Colonel Hermann would have been. In effect this court was requested to consider that Colonel Hermann said Spurlock plead and was found guilty simply because Mrs. Finkboner knew the Colonel's signature and from it she inferred certain things.

Such being the ruling of the court, respondent presented Miss Woodside who stated that she was on March 28, 1942, clerk-stenographer-reporter of the Provost Court of Honolulu; that she distinctly recalled Spurlock because she remembered how quiet he had been; and that he plead guilty to the charge. Inquiry as to how she knew Spurlock plead guilty revealed that it was her custom to put a "g" on the calendar if a defendant plead guilty and "n.g." enclosed in a circle if the plea was not guilty. Respondent's Exhibit No. 20, a page of the March 28 Provost Court calendar admitted for illustrative purposes, shows she put a "g" against the Spurlock case, therefore she was able to state that the Provost Court inquired as to the defendant's plea and that Spurlock plead guilty. Whether the same "g" also means to her that Spurlock was adjudged guilty does not appear. It is interesting to note that this same exhibit shows the provost judge to have been Colonel Franklin though it was in fact Colonel Hermann. Whether Colonel Hermann treated Spurlock as a probation violator or treated him as guilty on the new charge, the "g" sufficed for Miss Woodside's purposes — to her it was not a case which had to be tried. At best her "g" meant "case disposed of."

Upon the ultimate issue of jurisdiction of the Provost Court over the offense and over the person of Spurlock the conflict in the evidence on this question of fact is unimportant. It has been recited because both parties attached considerable importance to it. Respondent seems to think that if Spurlock plead guilty, he thus waived all of his constitutional rights and cannot be heard to complain. Petitioner, through counsel appointed for him, claims the March 28 occurrence was a revocation of probation in relation to an offense handled January 15, 1942, by the Provost Court despite its occurrence prior to the war. Over and beyond the questions seen in the conflict by the parties, the court saw, and called counsel's attention to, the question of whether, assuming all else, Spurlock was given a fair military hearing.

Upon the issue of whether Spurlock plead guilty on March 28, respondent had the burden of proof. I am not satisfied that respondent has discharged that burden. I therefore find as a fact that Spurlock did not plead guilty to the March 28 charge, but was, without trial, found guilty and disposed of accordingly by the Honolulu Provost Court.

Additional uncontested facts in this case are that after being...