Lee v. Madigan, 35907.
| Decision Date | 23 January 1957 |
| Docket Number | No. 35907.,35907. |
| Citation | 148 F. Supp. 23 |
| Parties | John LEE, Petitioner, v. Paul J. MADIGAN, the Warden, or his successor, Federal Penitentiary, Alcatraz Island, California, Respondent. |
| Court | U.S. District Court — Northern District of California |
Charles Upton Shreve, Carl L. Rhoads, Detroit, Mich., Robert E. Hannon, Castro Valley, Cal., for petitioner.
Lloyd H. Burke, U. S. Atty., by Richard H. Foster, Asst. U. S. Atty., San Francisco, Cal., for respondent.
Petitioner, serving a life sentence in the federal penitentiary at Alcatraz, California, for murder committed in the Camp Cooke Disciplinary Barracks in 1949, seeks his release by means of a writ of habeas corpus. He contends that the general court martial which convicted him of the offense charged under Article 92 of the Articles of War, 10 U.S.C.A. § 1564,* lacked jurisdiction. On June 12, 1947, he had received his dishonorable discharge from the Army. Petitioner was serving a 20-year sentence at the said barracks for the crime of armed robbery committed as a member of the United States Army while stationed overseas in France.
Petitioner relies on two bases for challenging the authority of the general court martial to proceed against him. First, he alleges that he was a civilian, — having been dishonorably discharged; second, that he committed the crime in time of peace and hence was entitled to a trial by the civilian authorities.
Petitioner was subject to general court martial jurisdiction insofar as his status as a civilian was concerned. Article of War 2, 10 U.S.C.A. § 1473;** In re Craig, C.C., 70 F. 969; Kahn v. Anderson, 255 U.S. 1, 41 S.Ct. 224, 65 L.Ed. 469; McDonald v. Lee, 5 Cir., 217 F.2d 619. As stated by the Supreme Court in the Kahn case, 255 U.S. at page 7, 41 S.Ct. at page 225: "* * * 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 imprisonment."
Petitioner's second point, namely, that he committed the offense "in time of peace," has been decided adversely by several courts, including the Ninth Circuit in the recent case of Osborn v. Swope, 230 F.2d 395, 397. In Kahn v. Anderson, supra, and Givens v. Zerbst, 255 U.S. 11, 41 S.Ct. 227, 65 L.Ed. 475, the Supreme Court held that "in time of peace," as used in the 92nd Article of War, means "peace in the complete sense, officially declared." Re-establishment of peace is a matter for political determination, rather than a question for the courts.
Since the United States did not conclude its final peace treaty until several years after petitioner committed his offense, the general court martial exercised its proper power under Article of War 92. The Presidential Proclamation of April 28, 1952, No. 2974, 50 U.S.C.A.Appendix preceding section 1, entitled, "Termination of the National Emergencies Proclaimed on September 8, 1939, and May 27, 1941," 66 Stat. c. 31, stated:
"The state of war between the United States of America and Japan, which was the last of the aforesaid states of war still existing, was terminated by the coming into force this day of the Treaty of Peace with Japan signed at San Francisco on September 8, 1951."
Thus, World War II was officially concluded and peace, for purposes of general court martial jurisdiction, was realized.
It is to be noted that the military authorities themselves have construed "time of peace" in a manner consistent with that enunciated by the early case of Kahn v. Anderson, supra, and as subsequently followed by the above cited authorities. Thus, in the trial of one Hightower, Court Martial 325200, 74 Board of Review 103, 117-118, the military court held that peace had not been officially proclaimed nor had treaties of peace been ratified with all nations with which a state of war existed. Accordingly, it correctly assumed that it had jurisdiction to proceed with the trial of the offense charged.
When petitioner, together with three associates, caused the death of another prisoner in the Camp Cooke Disciplinary Barracks on June 10, 1949, the general court martial had jurisdiction to try him for the crime of murder. The court martial transcript was admitted in evidence in the case and is part of the record before the court. It shows that p...
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Lee v. Madigan
...question was raised by a petition for a writ of habeas corpus challenging the jurisdiction of the court-martial. Both the District Court (148 F.Supp. 23) and the Court of Appeals (248 F.2d 783) ruled against petitioner. We granted certiorari, 356 U.S. 911, 78 S.Ct. 672, 2 L.Ed.2d The German......
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