United States v. O'BYRNE, Cr. No. 52-73-NN.
Decision Date | 10 October 1973 |
Docket Number | Cr. No. 52-73-NN. |
Citation | 423 F. Supp. 588 |
Court | U.S. District Court — Eastern District of Virginia |
Parties | UNITED STATES of America v. James L. O'BYRNE. |
Michael A. Rhine, Asst. U.S. Atty., Norfolk, Va., for plaintiff-appellee.
William Mills Krieger, Newport News, Va., for defendant-appellant.
Appellant, James L. O'Byrne, is a soldier on active duty stationed at Fort Eustis, Virginia, a United States Military Reservation. On March 18, 1973, O'Byrne was arrested on the base and charged with driving his automobile on the base while under the influence of intoxicants, a violation of Va. Code 18.1-54 which was made applicable pursuant to the Assimilative Crimes Act, 18 U.S.C.A. § 13. At trial, objection was raised to the Court's jurisdiction on the ground that since the act of drunk driving is made punishable by the Uniform Code of Military Justice, Article 111 (10 U.S.C.A. § 911), prosecution under the Assimilative Crimes Act is precluded.1 The objection was overruled and the case proceeded to trial. O'Byrne was found guilty, was fined $200.00, his operator's license was suspended for six months, and he was given a 30 day suspended jail sentence.
The sole contention on this appeal is that the United States Magistrate was without jurisdiction to try the case. We believe that the Magistrate had jurisdiction and affirm the conviction.
Article 111 of the Uniform Code of Military Justice (10 U.S.C.A. § 911) provides for the punishment of drunk driving:
"Any person subject to this chapter who operates any vehicle while drunk or in a reckless or wanton manner, shall be punished as a court-martial directs."
Appellant contends that the Assimilative Crimes Act by its own language makes violation of state law a federal offense only when the act occurs on land reserved to the federal government and when it is, "not made punishable by any enactment of Congress." Therefore, he argues, since drunk driving is made a punishable offense by Article 111 of the U.C.M.J., the Assimilative Crimes Act (and hence, the Virginia Drunk Driving Statute) simply does not apply, and the only offense for which he might be tried is a violation of the U.C.M.J. — which offense the United States Magistrate had no jurisdiction to consider. To support his position, he cites several cases.
See also Hockenberry v. United States, 422 F.2d 171, 173 (9th Cir. 1970):
An exemplary statement of the rule appears albeit in a slightly different context, in United States v. Chapman, 321 F.Supp. 767 (E.D.Va.1971), where the Court said, at 769:
Appellant's attorney argues that, notwithstanding O'Callahan v. Parker, 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed.2d 291 (1969), O'Byrne could have been prosecuted under military jurisdiction. (See Relford v. Commandant, U. S. Disciplinary Barracks, 401 U.S. 355, 91 S.Ct. 649, 28 L.Ed.2d 102 (1971). The question though is whether this situation calls for a departure from the general rule that jurisdiction of civilian courts over service personnel is concurrent with that of military courts in cases like the one here. It seems clear that district courts at the least have concurrent jurisdiction with military courts over violation of the laws of the United States by military personnel. See Gosa v. Mayden, 413 U.S. 665, 93 S.Ct. 2926, 37 L.Ed.2d 873 (1973); Grafton v. United States, 206 U.S. 333, 348, 27 S.Ct. 749, 51 L.Ed. 1084 (1907); Kennedy v. Sanford, 166 F.2d 568 (5th Cir. 1948); Franklin v. United States, 216 U.S. 559, 30 S.Ct. 434, 54 L.Ed. 615 (1910); Caldwell v. Parker, 252 U.S. 376, 40 S.Ct. 388, 64 L.Ed. 621 (1920); United States v. Hirsch, 254 F. 109 (D.C.N.Y.1918); United States v. Matthews, 49 F.Supp. 263 (D.C.Ala.1943); State v. Inman, 224 N.C. 531, 31 S.E.2d 641, cert. denied 323 U.S. 805, 65 S.Ct. 563, 89 L.Ed. 642; Peek v. United States, 321 F.2d 934 (9th Cir. 1963), cert. denied 376 U.S. 954, 84 S.Ct. 973, 11 L.Ed.2d 973; United States v. Bixler, 321 F.Supp. 268 (D.C.Kan.1971); 6 C.J.S. Army and Navy § 54, p. 445, and § 38, p. 425.
O'Byrne would have us say that the general rule has no application. That is, he argues, since the act of drunk driving is punishable in these...
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