Tullidge v. Biddle

• Decision Date: 03 April 1925
• Docket Number: No. 6709.,6709.
• Citation: 4 F.2d 897
• Parties: TULLIDGE v. BIDDLE, Warden.
• Court: U.S. Court of Appeals — Eighth Circuit

4 F.2d 897 (1925)

TULLIDGE v. BIDDLE, Warden.

No. 6709.

Circuit Court of Appeals, Eighth Circuit.

April 3, 1925.

R. D. Barker, of Kansas City, Mo., for appellant.

Alton H. Skinner, Asst. U. S. Atty., of Topeka, Kan. (Al. F. Williams, U. S. Atty., of Topeka, Kan., on the brief), for appellee.

Before STONE and LEWIS, Circuit Judges, and SCOTT, District Judge.

LEWIS, Circuit Judge.

This is an appeal from an order sustaining a motion to dismiss appellant's petition for writ of habeas corpus, on the ground that the petition disclosed that petitioner was not entitled to be discharged from custody under the writ, if issued. His confinement in the U. S. Penitentiary at Leavenworth, Kansas, is pursuant to sentence of general court-martial, and came about in this way, as appears from his petition and exhibits thereto:

He was a commissioned officer in the United States Naval Reserve Forces, assigned to and serving on the U. S. S. Birmingham, the flagship of the United States Atlantic Fleet, as assistant surgeon. Two charges were preferred against him, on each of which he was convicted: Charge I. Scandalous conduct tending to the destruction of good morals. Charge II. Conduct to the prejudice of good order and discipline. The trial was had on board the U. S. S. Sacramento. Being found guilty on both charges appellant was sentenced "to be dismissed from the United States Naval Service and to be imprisoned in such prison or penitentiary as the Secretary of the Navy may designate for a period of five (5) years, and to perform hard labor during said confinement." The proceedings, findings and sentence were approved by the President, and the New Hampshire state prison at Concord was designated as the place of confinement in execution of the sentence. After being taken there appellant shortly escaped, was at large for several years, but being later apprehended the Secretary of the Navy designated the U. S. Penitentiary at Leavenworth, Kansas, as the place of confinement for the remainder of the term, which has not been served out.

The first charge is brought under Article 8 of the Articles for the Government of the Navy (Comp. St. § 2969), which reads:

"Such punishment as a court-martial may adjudge may be inflicted on any person in the Navy — First. Who is guilty of profane swearing, falsehood, drunkeness, gambling, fraud, theft, or any other scandalous conduct tending to the destruction of good morals."

A large number of other offenses are defined under this article. The second charge is brought under Article 22 (Comp. St. § 2982), which reads:

"All offenses committed by persons belonging to the Navy which are not specified in the foregoing articles shall be punished as a court-martial may direct."

None of the specifications under either charge are found in the record, but it appears that there were nine under the first charge and two under the second. We are, therefore, not advised as to the particular acts for which appellant was put on trial. But it is not claimed that either charge did not state an offense within the jurisdiction of the court. We are, of course, concerned only with the question of jurisdiction over the person of appellant and the offenses charged against him, and whether or not the court could impose, under the law, the sentence pronounced. "We all agree, however, that if a writ might issue, there could be no discharge under it if the court-martial had jurisdiction to try the offender for the offense with which he was charged, and the sentence was one which the court could, under the law, pronounce. * * * It is enough if the court-martial had jurisdiction to proceed, and what has been done is within the powers of that jurisdiction." Ex parte Mason, 105 U. S. 696, 697, 699, 26 L. Ed. 1213; Carter v. Roberts, 177 U. S. 496, 20 S. Ct. 713, 44 L. Ed. 861; Collins v. McDonald, 258 U. S. 416, 42 S. Ct. 326, 66 L. Ed. 692; Smith v. Whitney, 116 U. S. 167, 182, 183, 6 S. Ct. 570, 29 L. Ed. 601; Frazier v. Anderson (C. C. A.) 2 F.(2d) 36.

The only attack here for our consideration is on the sentence imposed. It is argued that the court exceeded its powers in sentencing appellant to imprisonment in a penitentiary, and in attaching thereto as a part of that sentence that he perform hard labor during his confinement. On both grounds it is claimed that the sentence is void, because in excess of power. That proposition is rested upon a construction which appellant's counsel insists should be given to Article 7 (Comp. St. § 2968), in connection with a consideration of Articles 8 and 22. Article 7 reads:

"A naval court-martial may adjudge the punishment of imprisonment for life, or for a stated term, at hard labor, in any case where it is authorized to adjudge the punishment of death; and such sentences of imprisonment and hard labor may be carried into execution in any prison or penitentiary under the control of the United States, or which the United States may be allowed, by the legislature of any State, to use."

And it is insisted that because the punishment of death cannot be inflicted on convictions under Articles 8 and 22, therefore, according to the terms of Article 7, appellant could not have been sentenced to imprisonment at hard labor. It is at once observed that Article 7 does not provide that offenders who commit offenses other than murder may not be imprisoned in a penitentiary at hard labor. It deals only with punishment for murder. There are not many offenses named in the Articles which subject an offender to the death penalty. Articles 8 and 22 expressly leave the penalty to the discretion of the court. This is true also as to offenses under Articles 16, 17, 20, and 21 (Comp. St. §§ 2976, 2977, 2980, 2981), and of those named in the Act of August 22, 1912 (37 Stat. 356), and the Act of March 3, 1893 (27 Stat. 716). All of them...