Ex parte Wilson
| Decision Date | 14 May 1929 |
| Citation | 33 F.2d 214 |
| Court | U.S. District Court — Eastern District of Virginia |
| Parties | Ex parte WILSON. |
R. J. McMillan, of San Antonio, Tex., for petitioner.
Paul W. Kear, U. S. Atty., of Norfolk, Va.
Petitioner, Beverly E. Wilson, was formerly an ensign in the Navy stationed at Newport, R. I. On October 13, 1927, he left his post of duty without leave, and was not again heard of until February 18, 1929, when he was arrested and brought to the Naval Base at Hampton Roads, Va., where he has since been confined awaiting trial by court-martial for desertion from the Navy.
Acting on the recommendation of the Secretary of the Navy, the President, on January 26, 1928, directed that petitioner "be dropped from the rolls of the United States Navy from October 13, 1927."
The question for decision on this petition is whether an officer of the Navy who has been dropped from the rolls pursuant to article 36 (Art. Gov. of the Navy), because of unauthorized absence for a period of three months or more, may thereafter be tried by naval court-martial for such unauthorized absence, where the offense was committed within two years before the order for trial was made.
It was held by the Supreme Court in Carter v. McClaughry, 183 U. S. 365, at page 383, 22 S. Ct. 181, 46 L. Ed. 236, that, where jurisdiction has once attached, it cannot be divested by mere subsequent change of status, and that in such a case a trial and sentence are justified, though the person charged be not then in the service. But that was not the case here. More than a year elapsed between the date of the President's order dropping petitioner from the rolls of the Navy and the commencement of the prosecution against him. The Carter Case is not therefore determinative of this.
It was stated at bar that the precise question here involved has never been judicially determined. On the other hand, it has been uniformly and consistently held by the administrative officers of the Army and Navy that a person separated from either service thereafter ceases to be amenable to military jurisdiction, and this practice has been approved by separate opinions of five Attorneys General — Toucey (5 Op. Attys. Gen. 55), Cushing (8 Op. Attys. Gen. 328), Knox (24 Op. Attys. Gen. 570), and Palmer (31 Op. Attys. Gen. 520).
These opinions are largely based upon the recognition of the fact that a court martial under the laws of the United States is a court of special and limited jurisdiction. It has no jurisdiction beyond that given it by statute, and, since there is no statute giving it jurisdiction over persons not in the military...
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