Hines v. Mikell

• Decision Date: 11 April 1919
• Docket Number: 1684.
• Citation: 259 F. 28
• Parties: HINES, Major Field Artillery U.S. Army, v. MIKELL.
• Court: U.S. Court of Appeals — Fourth Circuit

259 F. 28

HINES, Major Field Artillery U.S. Army, v. MIKELL.

No. 1684.

United States Court of Appeals, Fourth Circuit.

April 11, 1919

Francis H. Weston, U.S. Atty., of Columbia, S.C., and M. J Dougherty, 1st Lieut. F.A., U.S. Army, of Mesa, Ariz., Trial Judge Advocate (J. Waties Waring, Asst. U.S. Atty., of Charleston, S.C., and Capt. W. L. Martin, of Montgomery Ala., Trial Judge Advocate, on the brief), for appellant.

R Beverley Herbert and H. N. Edmunds, both of Columbia, S.C. for appellee.

Before PRITCHARD, KNAPP, and WOODS, Circuit Judges.

PRITCHARD Circuit Judge.

This was a habeas corpus proceeding tried in the United States District Court for the Eastern District of South Carolina. The facts may be epitomized as follows:

On or about July 22, 1917, William E. Mikell, a civilian, on his personal application, was employed by the quartermaster at Camp Jackson in the capacity of a stenographer.

Camp Jackson is a cantonment located near Columbia, S.C., established under the authority of the National Defense Act, approved June 3, 1916, c. 134, 39 Stat. 166, and amendments thereto. This camp was established for the training of the military forces of the United States for service in the theater of operations overseas.

Mikell continued in his employment until on or about March 15, 1918, when again, upon his personal application, he was employed as auditor of the constructing quartermaster's office, and his employment at such cantonment was continuous until his arrest and confinement, followed by his discharge on or about September 25, 1918. After he was arrested he was confined in the prison stockade, Camp Jackson, under order of the commanding general, charged with violation of the 94th Article of War (Comp. St. Sec. 2308a).

Before he could be brought to trial by court-martial, he was released and discharged from military confinement, on a petition for writ of habeas corpus, by the United States District Court for that district. The government took an exception to the judgment of the lower court, and the case comes here now on appeal.

The first and second assignments of error are in the following language:

'That his honor erred in overruling the demurrer interposed to the petition because the said petition failed to state sufficient facts to entitle the petitioner to a writ of habeas corpus, or to have a rule to show cause issued.'

'That his honor erred in overruling the demurrer interposed to the petition because the petition failed to show that the petitioner was not subject to the jurisdiction of a military court-martial.' Where one files a petition for habeas corpus it is incumbent upon him to show that his detention is unlawful; therefore, where as in this instance, one is confined under a statute containing a number of provisions, on any one of which he may be detained, the petition must clearly set forth each provision of the statute, and it must be averred that neither of them applies to him.

Among other things, the defendant stated the ground upon which he could not be lawfully held in the following language:

'That your petitioner is not an officer or soldier in any branch of the military or naval service of the United States, nor is your petitioner in any other wise subject to the military laws of the United States, nor has he in any wise committed any breach of the same, nor does he reside within the confines of said Camp Jackson, but, on the other hand, resides at his own home, in the county of Richland, state aforesaid.'

Inasmuch as these two assignments are closely related, we will consider them together. As we have stated, where there are a number of elements of a statute which may warrant the detention of the petitioner, it is incumbent upon him to negative each provision.

The petitioner states, among other things, that he is 'not otherwise subject to military laws of the United States. ' This is a mere conclusion of law. However, we prefer not to base our decision upon the ground that the demurrer should have been sustained. The principal point involved in this controversy is as to whether the appellee is amenable to court-martial jurisdiction.

The section upon which the defendant was sought to be prosecuted is subdivision (d) of article 2, Sec. 1342, Revised Statutes, as amended by the act of August 29, 1916, c. 418, Sec. 3, 39 Stat. 650, 651 (Comp. St. Sec. 2308a), and is in the following language:

'All retainers to the camp and all persons accompanying or serving with the armies of the United States without the territorial jurisdiction of the United States, and in time of war all such retainers and persons accompanying or serving with the armies of the United States in the field, both within and without the territorial jurisdiction of the United States, though not otherwise subject to these articles.'

In order to correctly determine the matter in controversy, we must ascertain the true meaning of the foregoing section. In other words, was the appellee 'serving with the armies of the United States in the field * * * in time of war'?

Appellee admits that he was serving with the army at the time of his dismissal from the service, and that he was within the territorial jurisdiction of the United States in time of war; but he contends that the army in which he was serving was not 'in the field,' within the meaning of the act under which he was held.

It is insisted by counsel for the government that when we come to determine the meaning of the words 'in the field' we should ascertain whether they 'possess a technical as well as a meaning of common acceptation, and whether they are to receive their common accepted meaning or are to be construed in accordance to their technical import.' The learned judge who tried this case in the court below, in referring to the meaning of the words 'in the field,' said:

'The ordinary meaning of the words 'field' or 'in the field,' with regard to military operations, means in the actual field of operations against the enemy; not necessarily the immediate field of battle, but the field of operations, so to say; the field of war; the territory so closely connected with the absolute struggle with the enemy that it is a part of the field of contest.'

Is the interpretation placed upon this section by the lower court sufficiently broad to meet its requirements? Did the court interpret this section in the sense in which it is employed by military authorities? In other words, have not these words acquired a peculiar and appropriate meaning in the language of war? From the very nature of things, we think they should be given their technical meaning.

We find in 36 Cyc. 1118, the following:

'Terms of art, or technical words and phrases used in a statute,' that 'have acquired a peculiar and appropriate meaning in the law, must be interpreted in accordance with their received meaning and acceptation with the learned in the art, trade, or profession to which they belong, unless it clearly appears * * * that it was the intention of the Legislature to use them in a different sense.'

A post or garrison, properly speaking, is the permanent home of the army in time of peace, where soldiers are given proper training with a view of having them prepared for the intelligent performance of duty in the event of a conflict; and in case of war, when the army leaves the post and moves in the direction of the enemy, or to some intermediate point where they may temporarily stop for training, would it not be more reasonable to say that they were then 'in the field'?

In the United States Army Regulations (paragraph 193 et seq., p. 48) it is provided for field service in time of peace:

'In time of peace a department commander is charged, under direction of the War Department, with the duty of preparing for war all the troops and all the military resources of his department, and with the administration of all the military affairs of his department, except as otherwise prescribed by army regulations or existing orders. * * * He will annually concentrate his tactical division, or portions thereof, and secure for himself, and his division staff, as much practice as possible in the actual handling and supply of troops in the field. * * * The object of such inspections is to determine the preparedness of organizations for war service, and the capacity of brigade commanders and all other officers for the exercise in the field of command appropriate to their rank. With this object constantly in view, the character of the inspection may be varied by the department commander, and any exercise may be required which may be necessary to arrive at definite conclusions and to justify positive recommendations; but tactical inspections will ordinarily embrace the following subject: * * *

'(i) Drill regulations; combat exercise appropriate to the size of the command.

'(j) Field fortification, including the reconnaissance, selection, and occupation of defensive positions, the actual construction of appropriate intrenchments, when practicable, and the rendition of reports, including the necessary sketches, based on standard publications and service manuals treating of the subject of field fortifications.' In Infantry Drill Regulations, United

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