United States v. Handy, 12853.
| Decision Date | 02 August 1949 |
| Docket Number | No. 12853.,12853. |
| Citation | 176 F.2d 491 |
| Parties | UNITED STATES ex rel. MOBLEY v. HANDY, Commanding Officer. Fort Sam Houston. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Ben F. Foster, San Antonio, Tex., William C. Davis, San Antonio, Tex., R. G. Harris, San Antonio, Tex., for appellant.
Henry W. Moursund, U. S. Atty., San Antonio, Tex., Joel W. Westbrook, Asst. U. S. Atty., San Antonio, Tex., for appellee.
Before HUTCHESON, SIBLEY, and WALLER, Circuit Judges.
Setting out frankly and with detailed particularity, the circumstances of his arrest and detention by the military, appellant, relator below, sought release on habeas corpus.1
The respondent, in his return, with equal frankness, particularity and detail, showed: that relator had been arrested as charged; that he had been restricted to the geographical limits of the post by direction of the commanding general; that the imposition of this restraint was made known to relator, who acknowledged it in writing, and his willingness to comply with it; that he had breached his arrest and fled to the United States; and that he had been arrested in Texas to be carried back to Germany by air for trial there by general court martial.
To this return, relator filed a traverse and an amended traverse, in which, denying, as a legal conclusion, that anyone with lawful authority had restricted him to the geographical limits of the Frankfort military post and required him to appear and report each morning at 9 o'clock, he yet admitted, as matter of fact, that he had received the letter which purported to advise him that he had been placed under arrest and so restricted, and to require him to personally report each morning to the provost marshal.
As to the court martial charges, alleging merely that he does not have sufficient information to either admit or deny that the charges were signed and sworn to on August 27, 1948, and referred to a general court martial for trial on December 9, 1948, with a copy of said charges served on him, he yet admits that some character of paper was servied on him on or about that date.
As to the showing in the return that he was arrested pursuant to the written order of the provost marshal general, he does not deny that he was so arrested. He merely makes the legal point that the order was not a valid one because the court martial had lost its jurisdiction after separation of relator from service with the Post Exchange in Frankfort.
The district judge, of the opinion that upon the matters pleaded and admitted, relator's detention was lawful and that he was not entitled to relief, denied the writ. Relator is here making no contention upon the facts but presenting the legal contention that at the time of his arrest in the United States, he was a civilian and was, therefore, not subject to military jurisdiction or to military arrest here, on the order of the European command for return to Europe for trial by court martial there.
Admitting that while he was in Germany he was, under Subd. (d) of Art. of War 2, 10 U.S.C.A. § 1473, subject to military law and jurisdiction, he insists that because of the...
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