Rosborough v. Rossell, 4051.
| Decision Date | 26 July 1945 |
| Docket Number | No. 4051.,4051. |
| Citation | 150 F.2d 809 |
| Parties | ROSBOROUGH v. ROSSELL |
| Court | U.S. Court of Appeals — First Circuit |
Charles R. Pierce and S. Wallace Dempsey, both of Washington, D. C., for appellant.
Tom C. Clark, Asst. Atty. Gen., David Reich, Atty., Department of Justice, of Washington, D. C. (John D. Clifford, Jr., U. S. Atty., and Edward J. Harrigan, Asst. U. S. Atty., both of Portland, Me., T. L. Gatch, Rear Admiral, U. S. Navy, Judge Advocate General of Navy and Hugh J. McGrath, Atty., Office of Judge Advocate General, U. S. Navy Department, both of Washington, D. C., of counsel), for appellee.
Before MAGRUDER, MAHONEY and WOODBURY, Circuit Judges.
Appellant Samuel A. Rosborough appeals from a decree denying a petition for a writ of habeas corpus. The case was heard below upon the petition and respondent's return to an order to show cause, and the facts are not in controversy.
Rosborough enlisted in the United States Navy in January, 1942, for a period of six years. He was assigned to the United States Armed Guard Center, Brooklyn, N. Y. Later, he was on detached duty as a member of an armed guard crew, under command of an officer of the United States Naval Reserve, on board the motor ship Baltic, an oil tanker under registry of, and flying the flag of, the Republic of Panama. On June 30, 1942, while the Baltic was moored at dock at Montevideo, Uruguay, Rosborough began firing a machine gun mounted on a tripod on the bridge. He was drunk at the time. While members of the crew sought to grab him, a bullet struck and killed the Chief Officer of the Baltic, a civilian, one Ernest F. Backus. Rosborough was arrested by the local police, but later, upon request, was released to the custody and jurisdiction of the United States Navy.
The Acting Secretary of the Navy on September 28, 1942, directed that Rosborough be brought to trial before a general court-martial convened at the United States Navy Yard, New York, N. Y., upon the following charge and specification:
When the court-martial convened on November 4, 1942, counsel for the accused at the outset objected to its jurisdiction over the offense charged. The objection was overruled, and the case proceeded to trial.
At the conclusion of the trial, the court-martial recorded the following findings:
Sentence was pronounced in the following terms: "The court, therefore, sentences him, Samuel A. Rosborough, seaman second class, U. S. Navy, to be reduced to the rating of apprentice seaman, to be confined for a period of twenty (20) years, then to be dishonorably discharged from the United States naval service, and to suffer all the other accessories of said sentence as prescribed by section 622, Naval Courts and Boards."
On September 4, 1943, the Acting Secretary of the Navy approved the proceedings, findings, and sentence, except that "so much of the period of confinement adjudged, with corresponding accessories, in excess of ten (10) years, is set aside." Pursuant to such sentence as mitigated, Rosborough is now being held in confinement by respondent, Colonel James A. Rossell, U.S.M.C., in his capacity as Officer-in-Charge of the Naval Prison, Portsmouth Navy Yard, Kittery, Maine.
The petition for a writ of habeas corpus is based upon the contention that the sentence under which Rosborough is being held is void, because, under the circumstances recited in the petition, the court-martial lacked jurisdiction over the offense charged, i.e., murder, and the single specification thereunder.
Naval courts-martial are courts of special and limited jurisdiction, as conferred by Act of Congress. The case turns upon the proper interpretation of certain of the Articles for the Government of the Navy, 34 U.S.C.A. § 1200, as follows:
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Respondent urges the view that the jurisdiction of the Navy extends to every act and offense committed by a member of the Navy which may bring disgrace upon the service, and that this jurisdiction is based not upon any territorial principle, but upon the authority of the Navy over its members. But while Congress may well have constitutional power to confer such plenary jurisdiction upon naval courts-martial on this broad principle, it remains to inquire whether Congress has done so. Article 22(a), above quoted, contains no such sweeping grant. As the Attorney General ruled many years ago: "This article cannot be interpreted as intending to give to a court-martial general criminal jurisdiction, but only jurisdiction over those offenses not specified by name, which are injurious to the order and discipline of the Navy, and this jurisdiction is given for the purpose of preserving that order and discipline." 1880, 16 Op. Atty. Gen. 578, 580. In Smith v. Whitney, 1886, 116 U.S. 167, 183, 6 S.Ct. 570, 578, 29 L.Ed. 601, the court pointed out that this article "applies only to offences `not specified in the foregoing articles,' * * * leaving within the jurisdiction of courts martial cases not so specified, but recognized as military offences by the usages of the naval service."1
It follows that where any specific offense is enumerated in one of "the foregoing articles", the jurisdiction of the court-martial must rest, not upon the general article 22(a), but upon the specific article, and must be subject to any limitations expressed in such specific article with reference to the offense in question. Since the offense of murder is specified in a preceding article (article 6), the natural conclusion would be that the jurisdiction of a court-martial over that offense must be determined by the provisions of article 6 rather than article 22(a).
To escape this conclusion, respondent argues that article 6 does not deal comprehensively with the offense of murder, but only with certain types of murder carrying the death penalty, namely, murders committed outside the territorial jurisdiction of the United States by a person belonging to any public vessel of the United States; and that, since article 6 does not specify any punishment for murders committed by naval personnel within the territorial jurisdiction of the United States, or for murders, wherever committed, by naval personnel who do not belong to any public vessel of the United States, a charge of murder in such cases will lie under the general provision of article 22(a), with the limitation that the death penalty cannot be imposed because article 22(a) does not so provide (see article 50).
To us the foregoing seems a strange construction of the governing act. Its acceptance would result in obvious incongruities. Thus, a person belonging to a public vessel of the United States who commits a murder on the high seas might be punished with death by a naval court-martial, but if the same offense, however heinous, were committed in Boston Harbor, a court-martial, though having jurisdiction of the offense, might not impose the extreme penalty. Or, again, if two members of the Navy, one belonging to a public vessel of the United States and the other not so belonging, should combine to commit a murder in a foreign port, a naval court-martial could try both for murder but could sentence only the first one to death.
We think the qualifications in article 6 are not to be read as specifying certain "types of murder" but rather as limiting the jurisdiction of naval courts-martial over the offense of murder. Murder is murder by whomever or wherever committed. This is indeed recognized in Naval Courts and Boards (1937), issued by the Secretary of the Navy, with the approval of the President, for the government of all persons attached to the naval service. In section 53 of that official publication it is stated:
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