Reilly v. Pescor, 13215.

• Citation: 156 F.2d 632
• Decision Date: 26 July 1946
• Docket Number: No. 13215.,13215.
• Parties: REILLY v. PESCOR, Warden, et al.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

156 F.2d 632 (1946)

REILLY v. PESCOR, Warden, et al.

No. 13215.

Circuit Court of Appeals, Eighth Circuit.

July 26, 1946.

Joseph W. Reilly, per se.

Sam M. Wear, U. S. Atty. (Sam O. Hargus, Asst. U. S. Atty., both of Kansas City, Mo., on the brief), for appellees.

Before GARDNER and THOMAS, Circuit Judges, and DUNCAN, District Judge.

GARDNER, Circuit Judge.

This case is before us on appeal from an order denying appellant's application for writ of habeas corpus.

It is alleged in the petition that appellant was inducted into the military service in April, 1942; that he claimed to be a conscientious objector, and was inducted "with the express understanding that he would not be required to handle a gun, or join a combat organization, or accept an overseas assignment." He served at various camps in the United States until February 8, 1943, when he received orders to proceed to Fort Mason, California, for transportation to Hawaii. He objected to his transfer to Hawaii and orders were received in due course directing that he proceed to New Orleans, Louisiana, at his own expense. Prior to his transfer to New Orleans he was a Staff Sergeant but in the transfer order he was demoted to Private. This he protested after arriving at New Orleans and he made claim for reimbursement of his travel expenses, and on April 25, 1943, he received a stencil from the First Sergeant at New Orleans directing him to use the stencil for the purpose of preparing copies of special orders and authorizing reimbursement of travel expenses. He used this stencil for the purpose of having printed copies of the special orders made by a printing establishment in New Orleans, authorizing reimbursement of his travel expenses. These he presented to the Finance Officer and received $69.69 as reimbursement for his travel expenses, and thereafter he continued on the pay-roll as a Staff Sergeant until June, 1943.

On July 26, 1943, he was arrested and placed in the guard house at the New Orleans Army Air Base. Ten days thereafter he was informed that he was accused in five charges under the 94th Article of War, 10 U.S.C.A. § 1566, charging him with filing false and fraudulent claims against the government; that he was accused in one charge under Article of War 96, 10 U.S.C.A. § 1568, of having impersonated a Staff Sergeant; and that he was accused in four charges under Article of War 93, 10 U.S.C.A. § 1565, of having forged special orders. An investigator was appointed by the military authorities, and on September 5, 1943, formal charges were served upon him by the Trial Judge Advocate. These formal charges varied somewhat from the original charges in that there had been added three charges under the 96th Article of War for uttering false documents.

He was tried by a general Court-Martial at New Orleans, Louisiana, on November 5, 1943. The findings of the Court-Martial, a copy of which was attached to the petition for writ of habeas corpus, disclose that he entered a plea of not guilty to all specifications and charges, and that he was found guilty on each of them. It is specifically alleged in the petition that he was convicted and sentenced "for alleged forgery, fraudulent claim against the government, and uttering forged documents." He was sentenced "To be dishonorably discharged from the service of the United States, to forfeit all pay and allowances due and to become due, and be confined at hard labor at such place as the reviewing authority directed for ten years."

Upon review the finding of one charge was disapproved and the sentence was modified "Not to exceed dishonorable discharge, total forfeitures and confinement at hard labor for five years." As thus modified the sentence was approved and ordered executed. Confinement was directed at the Federal Reformatory, El Reno, Oklahoma. Petitioner's claim for clemency was considered by the Secretary of War and denied on August 18, 1944. The record of the trial was reviewed in the office of the Judge Advocate General and found legally sufficient to support the sentence. The petition purports to embody the substance of the testimony presented at the trial before the Court-Martial.

The trial court expressed the view that petitioner's application for writ of habeas corpus was not based upon any claim of denial of any constitutional right by the Court-Martial, and that his application showed on its face that petitioner was seeking to review the sufficiency of the evidence to sustain the verdict and judgment of the Court-Martial and that this was not the proper office of the writ of habeas corpus. Being of this view, the court denied the writ without hearing.

On this appeal appellant seeks reversal on substantially the following grounds: (1) the court erred in holding that it appeared that an investigation was made of the charges prior to trial, the fact being that there were added to the charges originally filed new charges of "uttering of false documents;" (2) the court erred in holding that petitioner's application was not based upon any claim of denial of constitutional right by the Court-Martial; (3) the Court-Martial exceeded its authority and hence was without jurisdiction; (4) military law as practiced by the United States Army violates Articles VI and VII of the Amendments to the Constitution of the United States.

This being a habeas corpus proceeding, neither the lower court nor this court could review the evidence, nor, indeed, consider any alleged errors at law which may have been committed by the Court-Martial. Federal Courts-Martial are lawful tribunals with authority to determine finally any case over which they have jurisdiction, and their proceedings when regular are not open to review by civil tribunals except for the purpose of ascertaining whether or not the military court had jurisdiction of the person and the subject matter, and whether, having such jurisdiction, it may have exceeded its power. Givens v. Zerbst, 255 U.S. 11, 41 S.Ct. 227, 65 L.Ed. 475; Grafton v. United States, 206 U.S. 333, 27 S.Ct. 749, 51 L.Ed. 1084, 11 Ann.Cas. 640. If, therefore, it appears from the allegations of the application for the writ that the petitioner is not entitled to such writ, the court should deny it without going through the idle ceremony of issuing an order to show cause or calling upon the respondent to make return. Ex parte Quirin, 317 U.S. 1, 63 S.Ct. 1, 2, 87 L.Ed. 3; Walker v. Johnston, 312 U.S. 275, 61 S.Ct. 574, 85 L.Ed. 830; Banks v. O'Grady, 8 Cir., 113 F.2d 926; Adams v. United States ex rel. McCann, 317 U.S. 269, 63 S.Ct. 236, 87 L. Ed. 268, 143 A.L.R. 435; Ellerbrake v. King, 8 Cir., 116 F.2d 168; Dorsey v. Gill, 80 U.S.App.D.C. 9, 148 F.2d 857.

It is, however, claimed by appellant that the Court-Martial trying him was without jurisdiction because the charges against him had not prior to his trial been investigated. Article 70 of the Articles of War, as amended August 30, 1937, Title 10 U.S. C.A. § 1542, provides, among other things, as follows:

"No charge will be referred to a general court martial...