Kirkman v. McClaughry

• Decision Date: 13 March 1907
• Docket Number: 8,505.
• Citation: 152 F. 255
• Parties: KIRKMAN v. McCLAUGHRY.
• Court: U.S. District Court — District of Kansas

152 F. 255

KIRKMAN v. McCLAUGHRY.

No. 8,505.

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

March 13, 1907

This is a petition for a writ of habeas corpus filed by George W Kirkman, late captain Twenty-Fifth United States Infantry against R. W. McClaughry, the warden of the United States penitentiary at Ft. Leavenworth, in which penal institution petitioner is confined by authority of sentences imposed by general courts-martial duly and regularly entered against him and properly approved in compliance with the articles of war. The facts necessary to an understanding and decision of the precise question presented by the petition for the writ and the return of the warden to the writ are these:

In pursuance of special order No. 9, dated Headquarters Department of Missouri, January 9, 1905, petitioner was regularly tried by a general courtmartial, duly constituted and convened at Ft. Niobrara, Neb., on specifications and charges of violation of the provisions of the sixty-first and sixty-second articles of war. The trial resulted in a conviction of petitioner, and sentence was imposed May 23 1905, as follows:

'And the court does therefore sentence him, Capt. George W Kirkman, Twenty-Fifth United States Infantry, to be dismissed from the service of the United States and to be confined at hard labor in such penitentiary as the reviewing authority may direct, for the period of two (2) years.'

The record of the proceedings of the court having been transmitted and submitted to the President for his approval before execution, in pursuance of the 106th article of war, the sentence pronounced was duly approved by the President, and the place of confinement under the sentence designated, in the following language:

'The White House, June 15, 1905.

'The sentence in the foregoing case of Captain Geo. W. Kirkman, 25th Regiment of Infantry, is approved and will be carried into execution.

'Theodore Roosevelt.

'The United States penitentiary at Fort Leavenworth, Kansas, is designated as the place for his confinement.'

During the pendency of this proceeding against the petitioner, and its postponement awaiting the taking and arrival of proofs from the Philippines, petitioner committed other and further offenses, and was again, in pursuance of special order No. 47, dated Headquarters Department of the Missouri, March 13, 1905, regularly placed upon his second trial, and tried before a general court-martial, duly constituted and convened at Ft. Niobrara, Neb., on specifications and charges of violation of the provisions of the sixty-first and sixty-second articles of war, and was, on the 6th day of April, 1905, convicted and sentenced as follows: 'And the court does therefore sentence him, Capt. Geo. W. Kirkman, Twenty-Fifth Infantry, to be dismissed from the service of the United States and to be confined at hard labor at such place as the reviewing authority may direct for the period of one (1) year.'

The record of this second proceeding against petitioner having been transmitted and submitted to the President, in pursuance of the articles of war, the same was duly approved by him and the place of confinement designated, in the following language:

'The White House, June 15, 1905.

'The sentence in the foregoing case of Captain Geo. W. Kirkman 25th Regiment of Infantry, is approved and will be carried into execution.

'Theodore Roosevelt.

'Captain Kirkman ceases to be an officer of the army from June 17, 1905. The United States penitentiary at Fort Leavenworth, Kansas, is designated as the place for his confinement.'

As shown by the record, these trials were had before separate courts-martial for distinct offenses included therein in each case, being such civil statutory offenses as justified the imposition of the sentence pronounced against petitioner, under the ninety-seventh article of war.

Under this state of facts, as shown by the petition for the writ, and the return made to the writ by the warden of the penitentiary, petitioner demands his release from custody, in the following language, as copied from his petition:

'Your petitioner further shows to your honorable court that a sentence of a court-martial becomes valid only when sanctioned by the reviewing authority; that the sentences of both the above-mentioned courts-martial were approved on the same day by the reviewing authority, namely, June 15, 1905; that both sentences began to run on said day; that on January 22, 1907, allowing for good behavior, a time equal to the longest sentence had been served; that both sentences ran concurrently, and therefore on said 22d day of January, 1907, both sentences had been served and suffered.'

Wherefore petitioner prayed the issuance of the writ and his discharge thereunder.

Floyd E. Harper, for petitioner.

H. J. Bone, U.S. Atty., J. R. Wish, Asst. U.S. Atty., and Wm. G. Doane, Judge Advocate, for respondent.

POLLOCK, District Judge (after stating the facts).

As the petition for the writ was filed in this court on February 8th of the present year, and the writ issued on the 4th day of this present month, and as the term of sentence as claimed by the petitioner began to run on the 15th of June, 1905, it is quite clear the sentence of two years, imposed under the proceedings first instituted against him, had expired neither at the date of the filing of the petition, nor at the date the writ was issued, nor even on this 7th day of March, 1907, when the case was submitted for decision upon the petition and the return to the writ, unless allowance of time for good behavior, as claimed by the petitioner, be made. But as the case has been submitted for decision on the return to the writ, the truth of which is admitted, on the theory that such return does not constitute a legal justification for the detention of the petitioner, admitted by the warden, and as no proofs have been offered in support of the claim made for good behavior in the petition, and as the return does not admit allowance to the petitioner of time for good behavior, it may well be doubted whether in the present state of the record the petitioner has shown himself entitled to his discharge, even though his contention that the sentences imposed run concurrently should be sustained. However, assuming for the purpose of this decision petitioner is entitled to an allowance of time for good behavior, as claimed by him, is he then entitled to his discharge, under the facts above stated?

Beyond doubt, it is the settled rule in the civil courts of this nation (as the term 'civil' is used in contradistinction of 'military' courts), when engaged in the exercise of their criminal jurisdiction, and also the settled rule in most, if not all, of the states of this Union, by virtue of common-law principles, or in the exercise of express legislative authority, when imposing sentence upon an offender convicted on two or more counts in a criminal pleading charging separate and distinct offenses, or in imposing sentence after conviction against an offender in two or more cases in which distinct crimes are charged, that the terms of imprisonment imposed may run consecutively or cumulatively, instead of concurrently; that is, the second term to begin at the expiration of the first, etc. 1 Chitty on Criminal Law, 718; 12 Cyc.p. 962; Blitz v. United States, 153 U.S. 308, 14 Sup.Ct. 924, 38 L.Ed. 725; Howard v. United States, 75 F. 986, 21 C.C.A. 586, 34 L.R.A. 509; In re Esmond (D.C.) 42 F. 827; Kite v. Commonwealth, 11 Metc. (Mass.) 581; Mims v. State, 26 Minn. 498, 5 N.W. 374; State v. Carlyle, 33 Kan. 716, 7 P. 623. However, conceding the power of the court in such case to impose sentence against an offender prescribing different terms of imprisonment to run consecutively, as a settled rule the sentence pronounced must clearly and definitely express the purpose and intent that the terms are to be served consecutively, or it will be held the terms run concurrently, and not cumulatively. U.S. v. Patterson (C.C.) 29 F. 775; Ex parte Gafford, 25 Nev. 101, 57 P. 484, 83 Am.St.Rep. 568; Ex parte Hunt, 28 Tex.App. 361, 13 S.W. 145; Wallace v. State, 41 Fla. 547, 26 So. 713; Larney v. Cleveland, 34 Ohio St. 599; In re Strickler, 51 Kan. 700, 33 P. 620.

In harmony with these principles, had the sentence of imprisonment imposed by the general courts-martial against petitioner been imposed by a civil court of the country for the infraction of a criminal statute of the land, they would of necessity have run concurrently, and not consecutively, and petitioner would in such case be entitled to his discharge as demanded by him, for the language employed evidences no intent to impose accumulative terms of imprisonment, and, although rendered by separate courts and on different days, yet from the nature of the punishment imposed they could not become operative or be executed until approved by the President and the place of imprisonment had been by him designated, in accordance with the 106th article of war. The question here raised for decision, however, is not the rule applied to sentences imposed by civil courts of this country, but the applicability or inapplicability of that rule to sentences imposed by the military courts of the country.

Are the rules of law applied to the judgments of such courts by reason of the law of their creation, the practice, and proceedings therein obtaining, or in the very nature of things, such as to preclude the giving of the same effect to their sentences imposed as would be given to judgments of conviction imposed by civil tribunals in the exercise of their criminal jurisdiction? The constitutional power, authority, and jurisdiction of courts-martial is found in article 1, Sec. 8, of the Constitution, which confers the power...