Hamilton v. McClaughry

• Decision Date: 12 April 1905
• Docket Number: 8,284.
• Citation: 136 F. 445
• Parties: HAMILTON v. McCLAUGHRY, Warden.
• Court: U.S. District Court — District of Kansas

136 F. 445

HAMILTON v. McCLAUGHRY, Warden.

No. 8,284.

United States Circuit Court, D. Kansas, First Division.

April 12, 1905

E. R Adams, for petitioner.

John S Dean and Wm. G. Doane, for respondent.

POLLOCK District Judge.

This is an application for writ of habeas corpus. The return of respondent admits the restraint charged in the petition and seeks to justify upon the following state of fact:

On the 23d day of December, 1900, petition was a private in Troop K Sixth Cavalry Regiment, Army of the United States, stationed at Camp Reilly, Pekin, China, having been ordered there to assist the allied powers in the protection of the foreign legations, and the suppression of what is commonly known as the 'Boxer Uprising' in China. At that time and place petitioner shot and killed one Corporal Charley Cooper, of petitioner's regiment, for which offense petitioner was on February 4, 1901, tried by a court-martial convened and sitting at Pekin, China. The trial resulted in a judgment of conviction. The record of the proceedings, trial, conviction and sentence reads as follows:

'Headquarters China Relief Expedition,

'Pekin, China, February 4, 1901.

'General Orders No. 6.

'(1) Before a General Court-Martial which convened at Pekin, China, pursuant to paragraph 5, Special Orders No. 1, January 2d, from these headquarters, and of which Colonel Charles F. Robe, 9th Infantry, was president, and Captain Charles R. Noyes, Adjutant, 9th Infantry, was Judge Advocate, was arraigned and tried Private Fred Hamilton, Troop K, 6th Cavalry.

'Charge: 'Murder, in violation of the 58th article of war.'

'Specification: In that Private Fred Hamilton, Troop K, 6th Cavalry, U.S. Army, did willfully, feloniously, and with malice aforethought inflict a wound on Corporal Charley Cooper, Troop K, 6th Cavalry, deceased, by firing a ball cartridge from a Colt's revolver, calibre 38, at said Cooper. From the effect of said wound, the said Cooper died almost immediately, about 8:25 p.m. on the 23d day of December, 1900. This at Camp Reilly, Pekin, China, about 8:25 p.m. on the 23d day of December, 1900.

'Pleas.

'To which the accused submitted the following plea in bar of trial: 'Want of jurisdiction of the court.'

'The special plea in bar of trial was overruled by the court-martial. The accused then pleaded as follows: To the specification: 'No guilty.' To the charge: 'Not guilty.' 'Findings.

'Of the specification: 'Guilty.' Of the charge: 'Guilty.'

'Sentence.

'And the court doth therefore sentence him, Private Fred Hamilton, Troop K, 6th Cavalry, 'to be dishonorably discharged the service of the United States, forfeiting all pay and allowances due him, and to be confined at hard labor in such penitentiary as the reviewing authority may direct for the period of his natural life.'

'The proceedings, findings, and sentence is approved. The reviewing authority is of the opinion that the evidence presented shows that the accused, shortly before the commission of the crime, had been abused and maltreated by Corporal Cooper to a considerable degree, and therefore was laboring under some provocation. To this extent the severity of the crime is lessened, and because of it the reviewing authority is constrained to reduce that portion relating to confinement at hard labor to a period of twenty (20) years. As mitigated the sentence is confirmed and will be duly executed. The United States Penitentiary at Fort Leavenworth, Kansas, is designated as the place for the execution of so much of the sentence as relates to confinement at hard labor. The prisoner shall be sent to Alcatraz Island, California, at the first favorable opportunity, for transfer to the United States Penitentiary at Fort Leavenworth, Kansas.

'The General Court-Martial convened at Pekin, China, by paragraph 5, Special Orders No. 1, current series, from these Headquarters is dissolved.

'By Command of Major General Chaffee:

'(Sgd.)

H. O. S. Heistand, Adjutant General.

'A true copy. R. B. Paddock, Captain 6th Cavalry.

'A true copy. R. W. McClaughry, Warden.'

The fifty-eighth article of war, under which petition was tried and convicted, reads as follows:

'In time of war, insurrection or rebellion, larceny, robbery, * * * murder, * * * shall be punishable by the sentence of a general court-martial, when committed by persons in the military service of the United States, and the punishment in any such case shall not be less than the punishment provided for the like offense by the laws of the state, territory, or district in which such offense may have been committed.'

It is the insistence of counsel for petitioner that at the time of the homicide there prevailed neither war, insurrection, nor rebellion, as required by the article of war above quoted to confer jurisdiction upon a general court-martial to try petitioner for the offense charged against him, and therefore the military court was without jurisdiction in the premises and its judgment void.

In approaching a consideration of this question, a few of the fundamental principles of law may be stated. It is the settled law that courts-martial are courts of inferior and limited jurisdiction. No presumptions in favor of their exercise of jurisdiction are indulged. To give effect to their judgments imposed, it must be made to clearly and affirmatively appear that the court was legally constituted, that it had jurisdiction of the person and offense charged, and that its judgment imposed is conformable to the law. Dynes v. Hoover, 20 How. 625, 15 L.Ed. 838; Runkle v. U.S. 122 U.S. 543, 7 Sup.Ct. 1141, 30 L.Ed. 1167. The judgments of such courts may be called in question in a collateral proceeding. Ex parte Watkins, 3 Pet. 193, 7 L.Ed. 650; Wise v. Withers, 3 Cranch, 331, 2 L.Ed. 457. Again, so jealous are all English-speaking nations of the liberty of their subjects, where a respondent in habeas corpus admits the restrain charged against him, he must justify by basing his right of restraint upon the exercise of some provision of positive law binding upon him, or the writ must issue and the person restrained have his liberty. It follows, therefore, notwithstanding the judgment of conviction by the military court set forth in the return of respondent and admitted by petitioner, if, as claimed by counsel for petitioner, the facts essential to a valid exercise of the military power conferred by the fifty-eighth article of war, to wit, the then existence of a state of war, insurrection, or rebellion in China, the place where the offense was committed and the trial had, is not shown, the writ must go and the petitioner be granted his liberty.

It is conceded in the briefs and argument of counsel for respondent that the terms 'insurrection' and 'rebellion,' used in the article of war, mean insurrection or rebellion against this government, and not another; but it is contended that at the time of the homicide such a condition of war existed in China, in which condition of war this government, under the authority of the Department of War, was a participant, as to authorize the exercise of military power to punish one in the military service of the United States, then in that country, for the commission of the crimes enumerated in the fifty-eighth article of war, by a general court-martial. The question thus presented for determination is one of first instance and large importance.

As shown by the record, during the military occupation of China by the troops of this government, no less than 271 trials by general court-martial were had, which resulted in 244...