Runkle v. United States United States v. Runkle

• Decision Date: 27 May 1887
• Citation: 122 U.S. 543,7 S.Ct. 1141,30 L.Ed. 1167
• Parties: RUNKLE v. UNITED STATES. UNITED STATES v. RUNKLE
• Court: U.S. Supreme Court

122 U.S. 543

7 S.Ct. 1141

30 L.Ed. 1167

RUNKLE v. UNITED STATES.

UNITED STATES

v. RUNKLE.

May 27, 1887.

This record shows that on the fourteenth of September, 1882, Benjamin P. Runkle filed in the office of the second auditor of the treasury department a claim based on the decision of this court in U. S. v. Tyler, 105 U. S. 244, for longevity pay as an officer in the army of the United States, 'retired from active service;' and that on the twenty-seventh of June, 1883, the secretary of the treasury referred it to the court of claims, under section 2 of the act of March 3, 1883, (chapter 116, 22 St. 485,) for an opinion upon the following questions: '(1) Was the court-martial that tried Benjamin P. Runkle duly and regularly organized, and had it jurisdiction of the person of said Runkle, and of the charges upon which he was tried? (2) Were the proceedings and findings of said court-martial regular, and the sentence duly approved in part by the president of the United States, as required by law? (3) Was Benjamin P. Runkle legally cashiered and dismissed from the army of the United States in pursuance of said court-martial and subsequent proceedings? (4) Was the president of the United States authorized and empowered by executive orde to restore said Runkle to the army, as it is claimed he was restored by the order of August 4, 1877? (5) Is Benjamin P. Runkle now a retired army officer, with the rank of major, and, as such officer, entitled to longevity pay under what is known as the Tyler decision?' Runkle thereupon filed his petition in the court of claims, in accordance with the rules of practice in that court applicable to such cases, and the United States put in a counter-claim for '$23,585.62, moneys paid to the said claimant by the paymaster general and his subordinates without authority of law; being the pay and allowances of a major in the army upon the retired list from the fourth day of August, 1877, to January 1, 1884, during which period the said claimant was not a major in the army, nor in any way authorized to draw pay and allowances as aforesaid.'

The facts as found by the court of claims are as follows:

(1) April 22, 1861, the claimant was mustered in as a captain of Thirteenth Ohio volunteer infantry, and served as such till November 8, 1861, when he was mustered in as major. August 18, 1862, he was honorably mustered out. August 19, 1862, he was mustered in as colonel of Forty-fifth Ohio volunteer infantry, and honorably mustered out July 21, 1864. August 29, 1864, he accepted appointment as lieutenant colonel of Veteran Reserve Corps, and was honorably mustered out October 5, 1866. October 6, 1866, he accepted appointment as major of Forty-fifth United States infantry, became unassigned, March 15, 1869, and was placed on the retired list as major United States army, December 15, 1870.

(2) At the time he was so placed on the retired list he was on duty as a disbursing officer of the bureau of refugees, freedmen, and abandoned lands for the state of Kentucky, and had been on that duty from Aprill 11, 1867; and con- tinued on it, without any new assignment to it, until he was arrested for trial before a court-martial, as hereinafter shown.

(3) June 25, 1872, the following special order, No. 146, was issued by the war department: '(1) By direction of the president, a general court-martial is hereby appointed to meet at Louisville, Kentucky, on the fifth day of July, 1872, or as soon thereafter as practicable, for the trial of Second Lieutenant John L. Graham, Thirteenth infantry, and such other prisoners as may be brought before it.' Before the court-martial convened and organized under this order, the said Runkle was arraigned and tried on the following charges: 'Charge 1. Violation of the act of congress approved March 2, 1863, c. 67, § 1. Charge 2. Conduct unbecoming an officer and a gentleman.' The specifications presented under these charges were all based on acts alleged to have been done by the claimant while on duty as a disbursing officer of the bureau of refugees, freedmen, and abandoned lands. There were 13 specifications under the first charge, and 14 under the second. All the specifications averred acts done by him in the year 1871, except the first and fifth under charge 1, and the first, fifth, and fourteenth, under charge 2, all of which averred acts done in 1870, before he was placed on the retired list. Of the first and fifth specifications under charge 1, and of the fourteenth under charge 2, he was found guilty. He was also found guilty of 10 other specifications under charge 1, and of 5 other specifications under charge 2, all of which averred acts done by him in 1871. He was also found guilty of both charges; and was sentenced by the court to be cashiered, to pay the United States a fine of $7,500, and to be confined in such penitentiary as the president of the United States might direct for the period of four years, and, in the event of the nonpayment of the fine at the expiration of four years, that he should be kept in confinement in the penitentiary until the fine be paid, the total term of imprisonment, however, not to exceed eight years.

(4) The proceedings, findings, and sentence of said court-martial were transmitted t the secretary of war, who wrote upon the record the following order:

'The proceedings in the foregoing case of Major Benjamin P. Runkle, retired, United States Army, are approved, with the exception of the action of the court in rejecting as evidence a certain letter written by a witness for the prosecution, and offered to impeach his credibility; also in unduly restricting the cross-examination of the same witness in relation to the motives influencing his testimony. Inasmuch, however, as in the review of the case it was determined that the whole testimony of this witness could be excluded from consideration without impairing the force of the testimony for the prosecution, upon which the findings rest, the erroneous action of the court in this respect does not affect the validity of the sentence. The findings and sentence are approved. In view of the unanimous recommendation by the members of the court that accused shall receive executive clemency on account of his gallant services during the war, and of his former good character, and in consideration of evidence, by affidavits presented to the war department since his trial, showing that accused is now, and was at the time when his offense was committed, suffering under great infirmity in consequence of the wounds received in battle, and credible representations having been made that he would be utterly unable to pay the fine imposed, the president is pleased to remit all of the sentence except so much thereof as directs cashiering, which will be duly executed.

'WM. W. BELKNAP, Secretary of War.'

The said secretary also issued, January 16, 1873, a general order of the war department No. 7, series of 1873, announcing the sentence of the court-martial, and that 'Major Benjamin P. Runkle, U. S. Army, (retired), ceases to be an officer of the army from the date of this order.' From the date of this order till after August 4, 1877, the claimant's name was not borne upon the army register.

(5) August 4, 1877, R. B. Hayes, president of the United States, made the following order:

'EXECUTIVE MANSION, WASHINGTON, August 4, 1877.

'In the Matter of the Application of Major Benjamin P. Runkle, U. S. Army, (retired.)

'The record of official action heretofore taken in the premises shows the following facts, to-wit: First. That on the fourteenth of October, 1872, Major Runkle was found guilty by court-martial upon the following charges, to-wit: 'Charge 1. Violation of the act of congress approved March 2, 1863, c. 67, § 1. Charge 2. Conduct unbecoming an officer and a gentleman.' Second. That on the sixteenth of January, 1873, W. W. Belknap, then secretary of war, approved the proceedings of said court, and thereupon caused general order No. 7, series of 1873, to issue from the war department, by which it was announced that Major Benjamin P. Runkle was cashiered from the military service of the United States. Third. That subsequent to the date of said general order No. 7, to-wit, on the sixteenth day of January, 1873, Major Runkle presented to the president a petition, setting forth that the proceedings of said court had not been approved by the president of the United States, as required by law; that said conviction was unjust; that the record of said proceedings was not in form or substance sufficient in law to warrant the issuing of said order; and asking the revocation and annulment of the same. Fourth. That, in pursuance of this petition, the record of the official action theretofore had in the premises was, by direction of the president, Ulysses S. Grant, referred to the judge advocate general of the United States army for review and report.

Fifth. That thereupon the judge advocate general reviewed the case, and made his report thereon, in which it is reported and determined, among other things, that, in the proceedings had upon the trial of the case by said court, 'it is nowhere affirmatively established that he (Major Runkle) actually appropriated any moneyt o his own use.' It also appears in said report that the conviction of said Runkle, upon charge one as aforesaid, is sustained upon the opinion that sufficient proof of the crime of embezzlement on the part of the accused was disclosed by the evidence before the court. And with respect to charge two no reference to the same is made in said report, except to deny the sufficiency of the evidence in the case, for a conviction upon the fourteenth specification thereof; and it is to be observed that the thirteen remaining specifications under this charge are identical with the the thirteen specifications under charge one. The judge advocate general further finds and determines in said report as follows, to-wit: 'For alleged failures to...