Madsen v. Kinsella

• Decision Date: 02 April 1951
• Docket Number: No. 6220.,6220.
• Citation: 188 F.2d 272
• Parties: MADSEN v. KINSELLA, Warden.
• Court: U.S. Court of Appeals — Fourth Circuit

188 F.2d 272 (1951)

MADSEN v. KINSELLA, Warden.

No. 6220.

United States Court of Appeals Fourth Circuit.

Argued March 12, 1951.

Decided April 2, 1951.

Joseph S. Robinson, New York City (Dayton M. Harrington, James D. Graham, Jr., and Harrington & Graham, all of Washington, D. C., John C. Morrison, and Jackson, Kelly, Morrison & Moxley, all of Charleston, W. Va., on brief), for appellant.

John M. Raymond, Asst. Legal Adviser, Department of State, Washington, D. C. (A. Garnett Thompson, U. S. Atty., Charleston, W. Va., and Joseph M. Sweeney, Asst. Legal Adviser, United States State Department, Washington, D. C., on brief) for appellee.

Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.

PARKER, Chief Judge.

This is an appeal from an order refusing to discharge appellant in a habeas corpus proceeding. Appellant was convicted of murdering her husband, an officer in the American Army, in the American Zone of Germany, by a trial court set up under the authority of the United States in the occupied territory. The conviction was affirmed but the sentence slightly modified by a reviewing court, similarly set up in the occupied territory under authority of the United States, and appellant was sent to the Federal Reformatory for Women at Alderson, West Virginia, for the service of the sentence imposed upon her. She sought release from this imprisonment by suing out a writ of habeas corpus; but her petition was denied by the District Judge in an able and comprehensive opinion which fully sets forth the facts of the case, the constitution of the occupation courts and the law under which appellant was convicted. See Madsen v. Kinsella, D.C., 93 F.Supp. 319.

Little need be added here to what was said by the District Judge. There can be no question as to the power of the United States, as an incident of the occupation of Germany, to set up courts in the occupied territory and to give such courts jurisdiction over American nationals in the territory. "The establishment of such courts is but the exercise of the ordinary rights of conquest." Mechanics & Traders Bank v. Union Bank, 22 Wall. 276, 296, 22 L.Ed. 871. It is the duty of an occupying power to provide, as far as possible, for the security of persons and property and the administration of justice within the territory; and this is a military duty which devolves upon the President, as commander in chief, who is entrusted as such with the direction of the military force by which the occupation is held. Santiago v. Nogueras, 214 U. S. 260, 266, 29 S.Ct. 608, 53 L.Ed. 989; The Grapeshot, 9 Wall. 129, 19 L.Ed. 651; Leitensdorfer v. Webb, 20 How. 176, 15 L. Ed. 891; Cross v. Harrison, 16 How. 164, 189, 14 L.Ed. 889.

We think it entirely immaterial that the President at the time of the trial of appellant was carrying on military government in the occupied zone of Germany through the state department instead of through the army and was using civilians instead of army personnel as judges of the courts. It was for the President, as commander in chief, to use such governmental department or agency as he thought proper in governing the conquered territory; and Congress in making appropriations to the army for the expenses of the occupation expressly authorized the President to transfer to other departments functions provided for under the appropriations. Act Oct. 6, 1949, P.L. 327, 81st Cong. 63 Stat. 709, c. 621. While military government, under that name, terminated September 21, 1949, the Office of the United States High Commissioner for Germany took over its functions and exercised the powers and authority of a "military" government, i. e. a government based on a military occupation. As stated in Winthrop, Military Law and Precedents, pp. 1246-1248:

"The authority for military government is the fact of occupation * * *. There must be a full possession, a firm holding, a government de facto.

"Military government, thus founded, is an exercise of sovereignty, and as such dominates the country which is its theatre in all branches of administration. Whether administered by officers of the army of the belligerent, or by civilians left in office or appointed by him for the purpose, it is the government of and for all the inhabitants, native or foreign, wholly superseding the local law and civil authority except in so far as the same may be permitted by him to subsist. * * *

"The status of military government continues from the inception of the actual occupation till the invader is expelled by force of arms, or himself abandons his conquest, or till, under a treaty of peace, the country is restored to its original allegiance or becomes incorporated with the domain of the prevailing belligerent."

And we think it equally clear that the occupation courts had authority to try appellant for murder under the law of Germany. It is the general law that local criminal law in an occupied area continues to bind civilians unless changed by the occupying power. Dow v. Johnson, 100 U.S. 158, 166, 25 L.Ed. 632; Ketchem v. Buckley, 99 U.S. 188, 190, 25 L.Ed. 473. In addition to this, a proclamation of General Eisenhower of September 19, 1945, 12 Federal Register 6997, provided that German law should be applicable in the occupied territory until repealed or superseded by a new law enacted by the military government. German courts were forbidden to exercise jurisdiction in criminal cases involving wide classes of persons, including not only the armed forces of the United Nations but also "any person serving with any such forces or a dependent accompanying any of them" or "any national of the United Nations" (12 Federal Register 2192); and military government courts were given jurisdiction of all offenses of civilians under the laws of the occupied territory. 12 Federal Register 2190. See U. S. Military Government v. Ybarbo, 1 Court of Appeals Reports (Germany) 207.

Appellant's principal contention is that exclusive jurisdiction to try her for the crime of murder was vested in the courts martial of the army, under the 92nd Article of War, 10 U.S.C.A. § 1564, since she claims that she was a person accompanying the army within the meaning of the 2nd Article of War, 10 U.S.C.A. § 1473. There is grave doubt whether a wife living with her officer husband is a person accompanying the army within the meaning of that article; but we need not go into the question, since we think it clear that, even if it be assumed that appellant occupied that status, the jurisdiction vested in courts martial over her was not exclusive and she was properly tried by the occupation court.

There can be no question but that prior to the 1916 amendments to the articles of war a military court, such as that by which appellant was tried, would have had jurisdiction to try her. Neely v. Henkel, 180 U.S. 109, 21 S.Ct. 302, 45 L.Ed. 448; Ex parte Ortiz, C.C., 100 F. 955; United States v. Reiter, 27 Fed.Cas. page 768, No. 16,146. As said in the Digest of Opinions of the Judge Advocate General of the Army (1912) pp. 1066-7:

"By a practice dating from 1847 and renewed and firmly established during the Civil War, military commissions have become adopted as authorized tribunals in this country in time of war. They are simply criminal war courts, resorted to for the reason that the jurisdiction of courts martial, creatures as they are of statute, is restricted by law, and can not be extended to include certain classes of offenses which in war would go unpunished in the absence of a provisional forum for the trial of the offenders * * *. Military commissions are authorized by the laws of war to exercise jurisdiction over two classes of offenses, committed, (1) in the enemy's country during its occupation by our armies and while it remains under military government, or (2) in a locality, not within the enemy's country or...