Frank Dynes, Plaintiff In Error v. Jonah Hoover

• Decision Date: 01 December 1857
• Citation: 15 L.Ed. 838,20 How. 65,61 U.S. 65
• Parties: FRANK DYNES, PLAINTIFF IN ERROR, v. JONAH D. HOOVER
• Court: U.S. Supreme Court

61 U.S. 65

20 How. 65

15 L.Ed. 838

FRANK DYNES, PLAINTIFF IN ERROR, v. JONAH D. HOOVER.

December Term, 1857

THIS case was brought up, by writ of error, from the Circuit Court of the United States for the District of Columbia, holden in and for the county of Washington.

Dynes was a seaman in the navy, who was tried by a court martial upon a charge of desertion, who found him not guilty of deserting, but guilty of attempting to desert; and sentenced him to be confined in the penitentiary of the District of Columbia at hard labor, without pay, for the term of six months from the date of the approval of the sentence, and not to be again enlisted in the naval service. Whereupon, the President of the United States directed Hoover, the marshal of the District, to commit him to the penitentiary.

The proceedings of the Circuit Court are stated in the opinion of the court.

The case was argued by Mr. Charles Lee Jones for the plaintiff in error, and by Mr. Gillet for the defendant. There was also a brief on that side, filed by Mr. Cushing, the late Attorney General.

Mr. Jones commenced his argument with a review of some of the principles of military law pertinent to the issue; after which, he proceeded to state his points, of which there is room to notice only the following, viz:

That the judgment and sentence of the court martial was an absolute nullity, and affords no sort of justification to any one executing process under it.

The following well-settled principles of law cannot be controverted: 'That when a court has jurisdiction, it has a right to decide every question before it; and if its decision is merely erroneous, and not irregular and void, it is binding on every other court until reversed. But if the subject-matter is not within its jurisdiction, or where it appears, from the conviction itself, that they have been guilty of an excess, or have decided on matters beyond and not within their jurisdiction, all is void, and their judgments, or sentences, are regarded in law as nullities. They constitute no justification; and all persons concerned in executing such judgments, or sentences, are trespassers, and liable to an action thereon.' (1 Peters, 340; 2 Peters, 169; Griffith v. Frazier, 8 Cranch, 9; 14 How., 144; Wicks v. Caulk, 5 Harris and Johns., 42; Bigelow v. Stearns, 19 Johns., 39; Case of the Marshalsea, 10 Co. R., 76; Terry v. Huntington, Hardres R., 480; Shergold v. Hollway, 2 Strange, 1002; Hill v. Bateman, 1 Strange, 710; Perkin v. Proctor, 2 Wilson, 382; Dr. Bouchier's Case, cited, 2 Wilson, 386; Martin v. Marshall and Key, cited, 2 Wilson, 386; Parsons v. Lloyd, 3 Wilson, 341; Miller v. Seare, 2 Wm. Black. R., 1145; Crepps v. Durden, Cowp., 640; Groome v. Forrester, 5 M. and S., 314; Warne v. Varley, 6 Term, 443; Brown v. Compton, 8 Term, 424; Moravia v. Sloper, Willes R., 30; Peacock v. Bell, 1 Saunders, 74; 8 Term, 178; 2 Wm. Black., 1035; The King v. Dugger, 1 Dowl. Ry., 460; 3 Campbell's R., 388; Doswell v. Impy, 1 Barn. and Cress., 169; 13 Johns., 444.)

'A court martial is one of those inferior courts of limited jurisdiction whose judgments may be questioned collaterally. It is an inferior court in the most technical common-law sense of those words. It is called into existence for a special and limited purpose, and to perform a particular duty; and when the object of its creation is accomplished, it ceases to exist. The law will intend nothing in its favor. The decision of such a tribunal, in a case without its jurisdiction, cannot protect the officer who executes it. The court and the officer are all trespassers.' (Wise v. Withers, 3 Cranch, 337; Ex parte Watkins, 3 Peters, 208; Mills v. Martin, 19 Johns., 32; Smith v. Shaw, 12 Johns., 267; Brooks v. Adams, 11 Pickering, 442; Duffield v. Smith, 3 Sergt. and Rawle, 599; 3 Greenleaf's Ev., § 470; Warden v. Baily, 4 Taunt., 67; Frye v. Ogle, 1 McArthur, Ap., No. 24, and Hickman, Ap., No. 17; Moore v. Bastard, 2 McArthur, 194, 200; 1 McArthur, chap. 10, § 9, p. 264, 272; Hannaford v. Hunn, 2 Carr. and Payne, 148; Wharton's American Law of Homicide, p. 52.)

Two essential vices appear on the face of the proceedings of the court martial in question, either of which would alone render their whole proceedings irregular and void.

1. The finding was in a cause coram non judice, it being for an offence of which the plaintiff was never charged, and of which the court had no cognizance.

2. The subject-matter of the sentence, the punishment inflicted, was not within their jurisdiction, and is a punishment which they had no sort of permission or authority of law to inflict. (See Hickman, p. 149, 152, and 1 McArthur, 158.)

1st. The court martial was brought into existence by the order or precept of the Secretary of the Navy, and the plaintiff 'legally brought before it,' for the trial of his guilt or innocence of the following 'charge and specification of a charge preferred by the Secretary of the Navy,' and to no other legal intent or purpose whatsoever:

'Charge.—Desertion.

'Specification.—In this, that on or about the twelfth day of September, in the year 1854, the said Frank Dynes deserted from the United States ship Independence, at New York.

'J. C. DOBBIN, Secretary of the Navy.'

Now, here is a charge, with its specification, drawn up with every desired legal requisite of certainty and perspicuity, notifying the accused of the circumstances and facts to be brought in issue, and warning him of the evidence essential to establish his innocence. Of this charge, and of this charge only, had the court martial jurisdiction to try him, (see 2 McArthur, p. 221,) and their decision as to his guilt or innocence upon this charge, would be as absolute and final as would be the decision of any other court on matters within their jurisdiction.

But the court martial acquitted him of the only charge legally brought before them, the only subject-matter whereof they had cognizance, but found him guilty of another offence, of which they had no sort of jurisdiction—an offence as yet unknown to the law, not enumerated in the naval articles as one of the crimes within the cognizance of a court martial—thus convicting him of an offence not included in the charge or specification before the court, but a new offence, depending upon different facts and circumstances, and against the accusation of which they gave him not the least time or slightest warning to defend himself.

The finding of the court was as follows:

The court 'do find the accused, Frank Dynes, seaman of the United States navy, as follows: Of the specification of the charge, guilty of attempting to desert; of the charge, not guilty of deserting, but guilty of attempting to desert.'

This finding is in direct violation of the oath which, by the 36th article of the act of Congress for the government of the navy, each member of the court is required to take, 'before proceeding to trial,' that he 'will truly try, without prejudice or partiality, the case now depending.' And of the 38th article, which declares that 'all charges on which an application for a general court martial is founded, shall be exhibited in writing to the proper officer, and the person demanding the court shall take care that the person accused be furnished with a true copy of the charges, with the specifications, at the time he is put under arrest; nor shall any other charge or charges than those so exhibited be urged against the person to be tried before the court,' unless under the circumstances there enumerated, 'in which case reasonable time shall be given to the person to be tried, to make his defence against such new charge.' (See Macomb on Courts Martial, § 35 and § 36, p. 26; De Hart, p. 102; Tytler, 217.)

It is true that, at common law, the jury may frequently find the prisoner guilty of a minor offence, included in the charge, or of a part of the offence therein specified; as on an indictment for petit treason he may be found guilty of murder or of manslaughter, for both these offences are included in the charge, as is also the offence of manslaughter in the charge of murder; and under an indictment charging an assault with intent to murder the party, may be convicted of a simple assault only; or under an indictment charging an assault with intent to abuse and carnally know, the defendant may be convicted of an assault with intent to abuse simply. (1 Chitty's Crim. Law, 250, 251.)

In these cases, every fact and circumstance which is a necessary ingredient in the offence is set forth in the indictment, and the party is enabled to determine the species of offence he will be called upon to answer, and the evidence necessary to establish his innocence.

But on an indictment for felony he cannot be convicted of a misdemeanor, because the offences are distinct in their nature, and of a distinct legal character.

Nor can a party be convicted, on an indictment for a specific offence, of an attempt to commit that offence. (4 Blac. Com., p. 306, note.) Thus, on an indictment for burglariously breaking and entering a dwelling-house and stealing the goods mentioned, the party may be acquitted of the burglary, and convicted of the larceny, it being included in the charge; but he cannot be acquitted of the burglary and stealing, and convicted of a burglary with intent to steal, or to commit any other felony, for they are distinct offences. (See Vandercomb and Abbott's case, 2 Leach C. L., 828 to 833; 1 Russell on Crimes, 831; Com. v. Roby, 12 Pickering, 505, 506, 507; 4 Blac. Com., 306, note.)

So, on an indictment for murder, he cannot be acquitted of the murder, and convicted of an assault with intent to murder. He is before the court charged with a specific offence, and is prepared only to defend himself against that charge, and the matter therein specified; he may entirely rely upon the evidence of the very man of whose murder he is charged to prove that no homicide has been committed. It would then be in violation of...