Kahn v. Anderson, 421

• Decision Date: 31 January 1921
• Docket Number: No. 421,421
• Parties: KAHN et al. v. ANDERSON, Warden of United States Penitentiary at Leavenworth, Kan
• Court: U.S. Supreme Court

255 U.S. 1

41 S.Ct. 224

65 L.Ed. 469

KAHN et al.

v ANDERSON, Warden of United States Penitentiary at Leavenworth, Kan.

No. 421.

Argued Dec. 7 and 8, 1920.

Decided Jan. 31, 1921.

Messrs. Martin J. O'Donnell and Isaac B. Kimbrell, both of Kansas City, Mo., for appellants.

[Argument of Counsel from pages 2-5 intentionally omitted] Mr. W. C. Herron, of Washington, D. C., for appellee.

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

The petition for habeas corpus filed by the appellants on June 11, 1920, to obtain their release from confinement in the United States Disciplinary Barracks at Leavenworth having, on motion of the United States, been dismissed on the face of the petition and documents annexed, the appeal which is now before us was prosecuted. We are therefore only concerned with the issues which legitimately arise from that situation.

It was charged in the petition that on November 4, 1918, the petitioners were placed on trial before a general court-martial for violation of the ninty-sixth Article of War (Comp. St. § 2308a), in having conspired to murder a named fellow prisoner, and of the ninety-second Article in having committed the murder, and that at the time of the alleged commission of the crimes stated they were undergoing imprisonment in the barracks in question under sentences which had been imposed upon them by courts-martial for military offenses. It was averred that the legality of the organization of the court and its jurisdiction was at once challenged, and on the challenge being overruled, each of the petitioners was, on November 25, 1918, found guilty of the murder charged, and as the result of the action of the President in mitigating and approving the sentences, they were each liable for a long term of imprisonment.

The release which was prayed was based upon the following grounds: (1) Alleged illegality in the constitution of the court; (2) an assertion that the petitioners did not possess the military statute essential to cause them to be subject to the court's jurisdiction; (3) that their subjection, even if they possessed such military status, to be tried by court-martial, deprived them of asserted constitutional rights, and (4) that in no event had the court-martial power to try them for murder under the conditions existing at the time of the trial. We come to consider whether the court erred in overruling these contentions.

The fifth Article of War exacts that in any event a court-martial shall be composed of not less than 5 officers and must be composed of 13 when that number can be convened without manifest injury to the service. The court in this case was composed of 8 members, the order certifying that more than that number could not be convened without manifest injury to the service. The argument is that because the court was composed of less than 13 officers it was unlawfully constituted. But it has long been settled that the exercise of discretion as to fixing the number of the court with reference to the condition of the service, within the minimum and maximum limits, is executive and not subject to judicial review. Martin v. Mott, 12 Wheat. 19, 34, 35, 6 L. Ed. 537; Bishop v. United States, 197 U. S. 334, 340, 25 Sup. Ct. 440, 49 L. Ed. 780. The objection is therefore without merit.

Of the eight members of the court two were described in the order as retired officers and three as officers of the United States Guards. The contention is that, as by the fourth Article of War one must be an officer in the military service of the United States to be competent to sit on a court-martial, and as retired officers and officers of the United States Guards are not within that requirement, the constitution of the court was void. But both contentions, we are of opinion, are untenable; as to the retired officers, because it is not open to question, in view of the ruling in United States v. Tyler, 105 U. S. 244, 26 L. Ed. 985, that such officers are officers in the military service of the United States, and because it is equally certain that the order assigning the retired officers to the court was within the authority conferred by the Act of April 23, 1904, c. 1485, 33 Stat. 264 (Comp. St. § 2078), which provides that:

'The Secretary of War may assign retired officers of the Army, with their consent, to active duty * * * upon courts-martial. * * *'

As to the United States Guards officers, there can also be no doubt that the President was fully empowered by section 2 of the Selective Service Act Of May 18, 1917, c. 15, 40 Stat. 77 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 2044b), to exert the power which he did by Special Regulations, No. 101, organizing the military force known as the United States Guards, and that such force, under the express terms of section 1 of the same act, were a part of the Army of the United States, and that these officers were therefore competent to be assigned to court-martial duty.

As we have seen, the pleadings disclose that the alleged crimes were charged to have been committed by the accused while they were confined in a United States military prison undergoing punishment inflicted upon them, and upon this it is contended that either by implications resulting from the length of the sentences previously imposed and which were being suffered, or by assumption that there was a provision in the sentences to that effect, it resulted that the accused, by the convictions and sentences, ceased to be soldiers and were no longer subject to military law. But as the allegations of the petition and the contention based upon them concede that the petitioners were, at the time of the trial and sentence complainted of, military prisoners undergoing punishment for previous sentences, we are of opinion that even if their discharge as soldiers had resulted from the previous sentences which they were serving, it would be here immaterial, since as they remained military prisoners they were for that reason subject to military law and trial by court-martial for offenses committed during such im prisonment. Thus, in dealing with that question, in Carter v. McClaughry, 183 U. S. 365, 383, 22 Sup. Ct. 181, 188 (46 L. Ed. 236) it was said:

'The accused was...