Givens v. Zerbst

Decision Date31 January 1921
Docket NumberNo. 285,285
Citation41 S.Ct. 227,255 U.S. 11,65 L.Ed. 475
PartiesGIVENS v. ZERBST, Warden of the United States Penitentiary at Atlanta, Ga
CourtU.S. Supreme Court

Mr. John S. Strahorn, of Annapolis, Md., for appellant.

[Argument of Counsel from pages 12-16 intentionally omitted] Mr. Solicitor General Frierson, of Chattanooga, Tenn., and Mr. R. P. Frierson, of Washington, D. C., for appellee.

Mr. Chief Justice WHITE delivered the opinion of the Court.

In his return to a writ of habeas corpus, which was allowed on the petition of appellant, averring that he was restrained of his liberty in violation of his constitutional rights, the warden of the penitentiary at Atlanta, asserting the lawfulness of his custody of the petitioner, annexed as part of his return the following documents:

(1) A copy of General Orders, No. 56, issued by the President on June 13, 1918, conferring upon the commanders of designated camps, among them Camp Sevier, S. C., the authority to convene a general court-martial.

(2) General Court-Martial Orders No. 139, issued by the War Department under date of April 29, 1919, announcing that under Special Orders, No. 172, dated 'October 10, 1918, Headquarters, Camp Sevier, S. C.' (issued by the commanding officer of that camp), a general court-martial had convened at Camp Sevier on October 30, 1918, and before it there was arraigned and tried 'Captain William J. Givens, Infantry, United States Army,' under the charge of having murdered at or near Camp Sevier a named private soldier; that at the trial the accused officer had pleaded not guilty, and although acquitted of the charge of murder had been found guilty of manslaughter, and had been sentenced to dismissal from the army and to 10 years at hard labor at a place to be designated by the reviewing authority. The order further recited the approval of the sentence by the reviewing authority (the commander at Camp Sevier), and a like approval, with direction that the sentence be executed, made by the President on April 14, 1919, and concluded by announcing the dismissal of the convicted officer from the army as of the date of April 30, 1919.

(3) A telegram from the War Department to the commander at Camp Sevier announcing the approval of the sentence by the President, the dismissal of the officer from the army, that the United States penitentiary at Atlanta, Ga., was designated as the place of confinement, and directing the said commander to deliver the officer to that penitentiary.

(4) A letter from the Adjutant General of the Army of date April 29, 1919, directed to the warden of the penitentiary at Atlanta, transmitting him a copy of the telegram sent to the commanding officer at Camp Sevier, as previously stated, and informing him that in due season a copy of the official order promulgating the trial, conviction, and approval of the sentence, would be sent to him.

Upon a traverse of the return and the pleadings the case was heard and in a careful opinion the court, maintaining the sufficiency of the return, discharged the writ and remanded the petitioner to custody, and as the result of an appeal the correctness of its action is here for decision.

The grounds relied upon for reversal relate to three subjects: (1) The alleged illegality of the court because of want of power in the officer by whom it was called to convene it; (2) the failure of the record to show that the accused was an officer in the army or was in any way amenable to trial by court-martial, and the absence of jurisdiction in the court, in any event, to try a charge of murder because by law no person could be tried by court-martial for murder committed within the United States in time of peace, and there was no averment negativing a time of peace, and that in fact peace prevailed at the time of the trial; (3) the asserted unlawfulness of the confinement of the petitioner in the penitentiary at Atlanta because the record failed to establish that the place had been designated by the President, the final reviewing authority.

We come to test these grounds in the order stated. The court was undoubtedly a general court-martial and was convened by the commander of Camp Sevier. The power to convoke it, however, is not to be solely measured by the authority possessed by a camp commander, but in the light of the authority given to the President by the eighth Article of War (Comp. St. § 2308a), to empower 'the commanding officer of any district or of any force or body of troops' to appoint general courts-martial, and by the exertion of that power by the President manifested by General Orders, No. 56, conferring upon the commanding officer at Camp Sevier the authority to call a general court-martial. True, it is insisted that the words, 'the commanding officer of any district or of any force or body of troops,' are not broad enough to embrace the commanding officer at Camp Sevier; that, in issuing Order No. 56, the President therefore exceeded the power conferred upon him, and hence that Order No. 56, in so far as it gave the power stated to camp commanders, was void. But the text of article 8 so clearly demonstrates the unsoundness of the contention that we deem it unnecessary to refer further to it. And as General Orders, No. 56, was a part of the law of the land, which we judicially notice without averment or proof (Gratiot v. United States, 4 How. 80, 117, 11 L. Ed. 884; Jenkins v. Collard, 145 U. S. 547, 560, 12 Sup. Ct. 868, 36 L. Ed. 812; Caha v. United States, 152 U. S. 211, 221, 14 Sup. Ct. 513, 38 L. Ed. 415), we think the contention that that law should not have been enforced because it was not referred to by the camp commander in exerting the power which he possessed in virtue of that order is also without merit.

These conclusions render no longer applicable the contention that the court-martial was without jurisdiction because a special court appointed by a camp commander had no jurisdiction to try an officer with the rank of captain, but they do not dispose of the proposition that the record failed to show that the accused belonged to the army without reference to his rank and was therefore subject to trial by a military court.

Conceding that the possession by the accused of a status essential to the...

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