Kirkman v. McClaughry

• Citation: 160 F. 436
• Decision Date: 12 March 1908
• Docket Number: 2,591.
• Parties: KIRKMAN v. McCLAUGHRY, Warden.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

160 F. 436

KIRKMAN v. McCLAUGHRY, Warden.

No. 2,591.

United States Court of Appeals, Eighth Circuit.

March 12, 1908

George W. Kirkman, pro se.

Harry J. Bone, U.S. Atty., J.S. West, Asst. U.S. Atty., and W. G Doane, Acting Judge Advocate, for appellee.

Before VAN DEVANTER and ADAMS, Circuit Judges, and RINER, District judge.

VAN DEVANTER, Circuit Judge.

Upon two separate trials before different courts-martial upon distinct military charges, the appellant, then a captain in the regular army, was convicted and sentenced to dismissal from the service and to confinement at hard labor for stated terms in a penitentiary. The second trial was for offenses committed during an adjournment of the first. Neither sentence had been promulgated when the other was imposed, and neither contained any reference to the other. Indeed, the eighty-fourth and eighty-fifth Articles of War make it certain that neither court-martial, when imposing sentence knew of the result of the trial before the other. Both sentences were confirmed by the President on the same day and were then promulgated by the same order. After undergoing the confinement prescribed in the longer of the two terms the appellant, acting upon the theory that both began to run on the same day, sought to be released from further restraint through a writ of habeas corpus. Upon the hearing the Circuit Court ruled against that theory and discharged the writ. An appeal brings the case here.

Among the army regulations, made and published under the President's direction, are these:

'977. When the date for the commencement of a term of confinement imposed by sentence of a court-martial is not expressly fixed by the sentence, the term of confinement begins on the date of the order promulgating it. The sentence is continuous until the term expires, except when the person sentenced is absent without authority.

'978. The order promulgating the proceedings of a court and the action of the reviewing authority will, when practicable, be of the same date. When this is not practicable, the order will give the date of the action of the reviewing authority as the date of the beginning of the sentence. This does not apply to sentences of forfeiture of all pay and allowances.

A soldier awaiting result of trial will not be paid before the result is known.'

'981. When soldiers awaiting result of trial or undergoing sentence commit offenses for which they are tried, the second sentence will be executed upon the expiration of the first.'

While conceding that, if the second sentence had so provided, the term of confinement thereunder would have begun upon the expiration of the other term, the appellant contends that, as that sentence did not so provide, both terms began on the day when the sentences were promulgated, and, therefore, that when he had undergone confinement for the longer term he had also served the shorter one. To sustain this contention he chiefly relies upon the common-law rule, that when two or more sentences to imprisonment are imposed upon the same offender, whether for offenses charged in different indictments or in different counts of the same indictment, they are to be executed concurrently, unless it be otherwise provided therein. See 1 Bishop, New Crim. Proc. Sec. 1311; 25 Am. & Eng. Enc. (2d Ed.) 307; Blitz v. United States, 153 U.S. 308, 317, 14 Sup.Ct. 924, 38 L.Ed. 725; Howard v. United States, 21 C.C.A. 586, 590, 75 F. 986, 34 L.R.A. 509; Chadwick v. United States, 72 C.C.A. 343, 365, 141 F. 225. But we are not here concerned with the rules which, in the absence of a regulatory statute, control the proceedings of civil tribunals, but with the usages and customs of the military service which, in the like situation, control the proceedings of courts-martial; and that this is so is shown by the following extract from the opinion in Smith v. Whitney, 116 U.S. 167, 178, 6 Sup.Ct. 570, 576, 29 L.Ed. 601.

'Of questions not depending upon the construction of the statutes, but upon unwritten military law or usage, within the jurisdiction of courts-martial, military or naval officers, from their training and experience in the service are more competent judges than the courts of common law. This is nowhere better stated than by Mr. Justice Perry in the Supreme Court of Bombay, saying: 'And the principle of the noninterference of the courts of law with the procedure of courts-martial is clear and obvious. The ground work of the jurisdiction, and the extent of the powers of courts-martial, are to be found in the Mutiny Act and the Articles of War, and upon all questions arising upon these her Majesty's judges are competent to decide; but the Mutiny Act and Articles of War do not alone constitute the military code, for they are, for the most part, silent upon all that relates to the procedure of the military tribunals to be erected under them. Now this procedure is founded upon the usages and customs of war, upon the regulations issued by the Sovereign, and upon old practice in the army, as to all which points common-law judges have no opportunity, either from their law books or from the course of their experience, to inform themselves. It would therefore be most illogical, to say nothing of the impediments to military discipline which would thereby be interposed, to apply to the proceedings of courts-martial those rules which are applicable to another and different course of practice.' Porret's Case, Perry's Oriental Cases, 414, 419. So in Martin v. Mott, 12 Wheat. 19, 35, 6...