Kuykendall v. Hunter, 4186.

• Decision Date: 01 March 1951
• Docket Number: No. 4186.,4186.
• Parties: KUYKENDALL v. HUNTER.
• Court: U.S. Court of Appeals — Tenth Circuit

187 F.2d 545 (1951)

KUYKENDALL v. HUNTER.

No. 4186.

United States Court of Appeals Tenth Circuit.

March 1, 1951.

Arthur G. Warner and James E. Birdsall, New York City, on the brief, for appellant.

Hugh J. McGrath, Washington, D. C. (Lester Luther, U.S. Atty., Malcolm Miller, Asst. U.S. Atty., Topeka, Kan., Rear Admiral George L. Russell, and Lieutenant Commander Ralph K. Brandt, Washington, D. C., with him on the brief), for appellee.

Before PHILLIPS, Chief Judge, and HUXMAN and PICKETT, Circuit Judges.

HUXMAN, Circuit Judge.

This is an appeal from an order of the United States District Court for the District of Kansas, dismissing appellant's petition for writ of habeas corpus, quashing the writ theretofore issued, and remanding appellant to the custody of the respondent warden.

Appellant was tried before a general court martial. He was charged with desertion in time of war, rape — 4 specifications, theft — 6 specifications, and conduct prejudicial to good order and discipline — 6 specifications. He was found guilty on all specifications except 4 specifications of theft and 2 specifications of the charge of conduct prejudicial to good order and discipline. He was sentenced to be reduced to the rank of private, to be confined for the rest of his natural life, and to suffer all other accessories of said sentence as prescribed by Section 622, Naval Courts and Boards. The Acting Secretary of the Navy approved the proceedings, findings and sentence, but, under statutory authority, set aside the findings on specifications 1 and 3 of the charge of conduct to the prejudice of good order and discipline, and two specifications under the charge of theft.

The basic ground on which appellant seeks release from custody is that his sentence is void because of want of due process in the court martial trial. In his brief, he states his contention, as follows:

"The basic, fundamental error committed in the court martial was the deprivation of due process by joining four charges of rape, and trying the petitioner upon all four at once."

Under the law the charges against an accused may be consolidated for trial in a court martial trial. Naval Courts and Boards, 1937, issued by the Secretary of the Navy and approved by the President, March 5, 1937,¹ specifically provide that all charges against an accused shall be consolidated into one set of charges and one trial shall be had thereon.

Due process of law must be observed in military trials the same as trials in civil courts. Due process, or what constitutes denial of due process, has been defined by Justice Roberts in Lisenba v. California, 314 U.S. 219, 236, 62 S.Ct. 280, 290, 86 L.Ed. 166, as follows: "As applied to a criminal trial, denial of due process is the failure to observe that fundamental fairness essential to the very concept of justice."

While the requirements of military trials are not the same as in Civil Courts, the fundamental elements of fairness essential to the very concept of justice must be observed there as well as in civil courts. If a number of separate offenses are of such a nature that their joinder in a single trial does violence to this fundamental concept of a fair trial, then they may not be so joined notwithstanding the above statutory provisions.

The appellant contends that all four charges of rape were substantiated only by the weakest and uncorroborated testimony of the complaining witness in each instance and...