Ex parte Webb, 324.

• Decision Date: 22 June 1949
• Docket Number: No. 324.,324.
• Citation: 84 F. Supp. 568
• Parties: Ex parte WEBB.
• Court: U.S. District Court — District of Hawaii

84 F. Supp. 568

Ex parte WEBB.

No. 324.

United States District Court D. Hawaii.

June 22, 1949.

Hyman M. Greenstein, Honolulu, T. H., for petitioner.

Ray J. O'Brien, United States Attorney, District of Hawaii, Howard K. Hoddick, Assistant United States Attorney, District of Hawaii, Honolulu, T. H., for respondent.

McLAUGHLIN, District Judge.

In this habeas corpus matter the facts are that:

1. Webb, seaman, U. S. N., was:

(a) Arrested for "safekeeping" September 8, 1948.

(b) Given a Captain's Mast September 10, 1948, after which his commanding officer recommended that he be court martialed.

(c) On September 17, 1948, sent to the Marine Brig for confinement. The commitment papers made out by the Barber's Point Naval Air Station legal officer at the direction of the commanding officer stated that Webb was to be confined "awaiting trial by general court martial."

2. On January 4, 1949 — 117 days later — the Commandant of the Fourteenth Naval District accepted the recommendation, issued an order for trial to a court convened by his authority, and preferred the charge of arson with three specifications against Webb.

3. Webb on January 5, 1949, was placed under arrest for trial and served with the charge and specifications.

4. Upon this charge he was tried before the court martial April 5, 1949, and by it convicted of two of the three specifications. The Admiral approved the findings of the court but reduced the sentence, in view of the petitioner's prior good record, the court's recommendation for clemency, and in light of the period which had elapsed before Webb could be tried.

Upon these facts it is prayed that the writ issue because the conviction is a nullity in that

(a) Art. 43 for the Government of the Navy, 34 U.S.C.A. § 1200, was violated, for when on September 17, 1948, Webb was held "awaiting trial by general court martial" he was not served with charges and specifications.

(b) The 117-day delay in charging Webb violated his constitutional right to a speedy trial and thus vitiated the subsequent conviction.

As stated in the oral opinion, neither ground of the petition warrants the issuance of the writ.

Art. 43 was not violated. Obviously a description in Webb's service record to the effect he was being confined (from September 17 to January 5) "awaiting trial by general court martial" was a mistake. No one can be held in this status until one having the authority to order a person charged and tried before a court martial has so directed. In this instance that event did not occur until January 4, following which for the first time Webb was arrested for trial and served with a copy of the charge and specifications. The fact of the matter is, as revealed by the evidence, that between September 8 and September 17 Webb was confined for "safekeeping" pursuant to powers contained in Art. 1, while thereafter, his commanding officer having recommended that he be court martialed, the commitment papers should have properly described his confinement as "pending action by higher authority," to wit, the action of the Admiral upon the recommendation. As long ago decided by the Supreme...