United States v. Clark

• Decision Date: 01 August 1887
• Citation: 31 F. 710
• Parties: UNITED STATES v. CLARK.
• Court: U.S. District Court — Eastern District of Michigan

31 F. 710

UNITED STATES v. CLARK.

United States Circuit Court, E.D. Michigan.

August 1, 1887

Syllabus by the Court

The circuit court has jurisdiction of a homicide committed by one soldier upon another within a military reservation of the United States.

If a homicide be committed by a military guard without malice, and in the performance of his supposed duty as a soldier, such homicide is excusable, unless it was manifestly beyond the scope of his authority, or was such that a man of ordinary sense and understanding would know that it was illegal.

It seems that the sergeant of a guard has the right to shoot a military convict if there be no other possible means of preventing his escape.

The common-law distinction between felonies and misdemeanors has no application to military offenses.

While the finding of a court of inquiry, acquitting the prisoner of all blame, is not a legal bar to a prosecution, it is entitled to weight as an expression of the views of the military court of the necessity of using a musket to prevent the escape of the deceased.

Arthur Stone, the deceased, was a private soldier of Company I Twenty-third regiment, United States infantry, and, at the time of the homicide, was under conviction of a court-martial for 'conduct prejudicial to good order and military discipline,' and had been sentenced 'to be dishonorably discharged the service of the United States forfeiting all pay and allowances due or to become due, and to be confined at hard labor, at such military prison as the reviewing authority may direct, for two years. ' The prisoner was the sergeant of the guard having him in custody at the time. On the eleventh day of July, at 'retreat,' all the prisoners in the guard-house, six in number, had been taken out of the guard-house for roll-call and inspection, and were standing in a line, with their backs to the guard-house, in charge of a squad of armed soldiers. As Lieut. Wieton, officer of the day, and the prisoner, the sergeant of the guard, were entering the guard-house to inspect it, and just as the prisoner was crossing the threshold of the outer door, deceased, who was standing at the end of the line of prisoners, broke from the ranks, ran around the corner of a fence in line with the guard-house, and towards the public highway in front of the military reserve, from which it was separated by a board fence about six feet in height. As he left the ranks, an outcry was raised, and the quartermaster sergeant, who happened to see the escape, and a private by the name of Duff, started in pursuit, calling upon him to halt; the sergeant adding, 'There is a load after you. ' Clark hearing the outcry, turned and seized a cartridge from his box, hastily loaded his musket, and ran around the guard-house in the direction which Stone had taken. At this time Stone was about 30 yards ahead of his nearest pursuer, Duff, who did not seem to be gaining upon him, and stood little if any chance of overtaking him before he could gain the street. Just as he was crossing a military road within the reserve, and about to leap a rail fence parallel with this road, and about 35 yards from the outer fence, and about 80 yards from the guard-house, Clark fired, and hit Stone in the back just above the hips, inflicting a wound from which he died in the course of the evening. No ill feeling existed between the men; in fact they had always been upon very friendly terms, and it was at least doubtful whether Clark knew it was Stone when he fired.

C. P. Black, Dist. Atty., Chas. T. Wilkins, Asst. Dist. Atty., and Levi T. Griffin, for the prosecution.

Asa B. Gardner, Judge Adv. Gen., Sylvester Larned, Allen Fraser, and James C. Smith, for the defense.

BROWN J.

In view of the fact that this was a homicide committed by one soldier, in the performance of his alleged duty, upon another soldier, within a military reservation of the United States, I had at first some doubt whether a civil court could take cognizance of the case at all; but, as crimes of this nature have repeatedly been made the subject of inquiry by civil tribunals, I have come to the conclusion that I ought not to decline to hear this complaint. Indeed, it is difficult to see how I could refuse to do so without abdicating that supremacy of the civil power which is a fundamental principle of the Anglo-Saxon polity. While there is no statute expressly conferring such jurisdiction, there is a clear recognition of it in the fifty-ninth article of war, which provides that 'when any officer or soldier is accused of a capital crime, or of any offense against the person or property of any citizen of any of the United States, which is punishable by the laws of the land, the commanding officer, and the officers of the regiment, troop, battery, company, or detachment to which the person so accused belongs, are required, (except in time of war,) upon application duly made by or in behalf of the party injured, to use their utmost endeavors to deliver him over to the civil magistrate, and to aid the officers of justice in apprehending him and securing him, in order to bring him to trial. ' This article makes no exception of crimes committed by one soldier upon another, nor of cases where there is concurrent jurisdiction in the military courts. Tytler, in his work upon Military Law, says:

'The martial or military law, as contained in the mutiny act and articles of war, does in no respect supersede or interfere with the civil or municipal laws of the realm. * * * Soldiers are, equally with all other classes of citizens, bound to the same strict observance of the laws of the country, and the fulfillment of all their social duties, and are alike amendable to the ordinary civil and criminal courts of the country for all offenses against those laws, and breaches of those duties.'

In the case of U.S. v. Cornell, 2 Mason, 61, 91, Mr. Justice STORY took cognizance of a murder committed by one soldier upon another in Fort Adams, Newport harbor. The case was vigorously contested, and the point was made that the state courts had jurisdiction of the offense, but there was no claim that there was not jurisdiction in some civil tribunal. A like case was that of a murder committed in Fort Pulaski, at the mouth of the Savannah river, and tried in 1872 before Mr. Justice WOODS and Judge ERSKINE. U.S. v. Carr, 1 Woods, 480. No question was raised as to the jurisdiction. The subject of the civil responsibility of the army was very carefully considered by Attorney General Cushing, in Steiner's Case, 6 Ops.Atty.Gen. 413, and the conclusion reached that an act criminal both by military and general law is subject to be tried either by a military or civil court, and that a conviction or acquittal by the civil authorities of the offense against the general law does not discharge from responsibility for the military offenses involved in the same facts. The converse of this proposition is equally true.

2. The character of the act involved in this case presents a more serious question. The material facts are undisputed. There is no doubt that the deceased was killed by the prisoner under the performance of a supposed obligation to prevent his escape by any means in his power. There is no evidence that the prisoner fired before the necessity for his doing so had become apparent. Stone was called upon several times to halt, with a hail by the quartermaster sergeant that there was a 'load after him.' Duff, his nearest pursuer, was not gaining upon him, and in another half minute he would have scaled the two fences between him and the highway, and would probably have been lost in the houses that lie on the other side of the street. A court of inquiry, called for the purpose of fully investigating the circumstances, was of the opinion that if Clark had not performed his duty as efficiently as he did, by firing on deceased, he certainly would have effected his escape; and found that no further action was necessary in the case. The prisoner and the deceased had always been good friends, and it is at least doubtful whether Clark recognized him at the time of firing the fatal shot. The prisoner has heretofore borne a most excellent reputation, was never court-martialed nor punished, and was pronounced by all the witnesses who testified upon the subject to be an exceptionally good soldier. There is not the slightest reason to suppose that he was not acting in obedience to what he believed to be his duty in the premises. There was some conflicting testimony as to whether he was standing or kneeling at the time he fired, but I am not able to see its materiality. If he was authorized to shoot at all, he was at liberty to take such position as would insure the most accurate aim, whether his object was to hit the deceased in the leg or in the body. Clark says that he aimed low, for the purpose of merely disabling him, but, owing to a sudden descent in the ground, the shot took effect in the back instead of the leg. For the purpose of this examination, however, I am bound to presume that he intended to kill, as a man is always presumed to intend the natural and probable consequences of his acts. The case then reduces itself to the naked legal proposition whether the prisoner is excused in law in killing the deceased.

The general rule is well settled, by elementary writers upon criminal law, that an officer having custody of a person charged with felony may take his life, if it becomes absolutely necessary to do so to prevent his escape; but he may not do this if he be charged simply with a misdemeanor the theory of the law being that it is better that a misdemeanant escape than that human life be taken. I doubt, however, whether this law would be strictly applicable at the present day. Suppose,...