United States v. Hirsch
| Decision Date | 11 November 1918 |
| Parties | UNITED STATES v. HIRSCH. |
| Court | U.S. District Court — Eastern District of New York |
Melville J. France, U.S. Atty., of Brooklyn, and H. Harvey Harwood Asst. U.S. Atty., of New York City.
Stephen C. Baldwin, of New York City, for defendant.
Under a plea denying jurisdiction to the court, motion is made by Harry J. Hirsch, one of the defendants (18 in number) in the above-entitled action, to dismiss the indictment as against him, and for an order directing his release, and that all charges relating to the matters set forth in the indictment be left exclusively, so far as he is concerned, to the military forces of the United States for hearing before a military court, under the present Articles of War.
The indictment charges a conspiracy to defraud the United States between July 15, 1916, and September 19, 1918, and the commission of overt acts, attributed to each of the defendants, between August, 1916, and August, 1918.
The defendant making the motion is a colonel of the Regular Army detailed to the Quartermaster's Corps. His present application is based upon the language of the Articles of War, adopted by the act of Congress of August 29, 1916, and contained in the Army Appropriation Bill of that date (39 Statutes at Large, chapter 418, at page 650 (Comp. St. 1916 Sec. 2308a)).
This new codification 'shall at all times and in all places govern the armies of the United States,' and took the place of old section 1342 of the Revised Statutes, which was repealed, in so far as inconsistent with the new law. But it especially provides that all offenses committed prior to August 29, 1916, shall be governed by the law as it stood before that date; that is, by old section 1342 of the Revised Statutes.
It would therefore follow that some of the acts of conspiracy alleged in the indictment might prove to have occurred before August 29, 1916, and would be considered under the provisions of former section 1342, while the new articles would be in force as to matters occurring after that date.
But if the indictment will lie against the defendant Hirsch, under the new section 1342, its validity would not be affected by the amendment of 1916, for it might include any act within three years prior to the filing of the indictment. On the other hand, if the defendant Hirsch's contention is correct, further consideration would be required, in order to determine whether any part of the alleged conspiracy, or the commission of overt acts, antedated August 29, 1916.
Passing to a consideration of the point really presented, we find that under the previous Articles of War concurrent jurisdiction was given to the civil courts and to courts-martial to deal with any offender who happened to be at the time within the court's jurisdiction. Under this law both courts-martial and civil courts necessarily respected the jurisdiction which was being exercised by the other, and the court first apprehending the defendant was thus able to proceed with a trial, without reference to the concurrent jurisdiction of the other. In the same way double jeopardy was avoided. Each statute was therefore valid, and constitutional rights were entirely preserved.
This construction was upheld in the cases of Dynes v. Hoover, 61 U.S. 65, 15 L.Ed. 838, Coleman v. Tennessee, 97 U.S. 509, 24 L.Ed. 1118, Grafton v. United States, 206 U.S. 333, 27 Sup.Ct. 749, 51 L.Ed. 1084, 11 Ann.Cas. 640, and Franklin v. United States, 216 U.S. 559, 30 Sup.Ct. 434, 54 L.Ed. 615.
The new Articles of War embodied many paragraphs worded in exactly the same way as those previously in force, but new sections have been added, and some sections have been so changed as to require construction by the courts with reference to the matters considered in the cases above cited.
The general paragraph conferring jurisdiction read:
'The armies of the United States shall be governed by the following rules and articles.'
To this has been added the words 'at all times and in all places. ' This change was evidently inserted to cover the needs of the army when on foreign soil (as, for instance, in Mexico), and to avoid the possible contention that the 'armies of the United States' included only the forces of the United States within its borders. But the defendant here claims that the intent of the provision is to exclude, even within the United States, the exercise of any jurisdiction, other than that of the Articles of War, over the members of the army.
Article 12 is new, and gives general courts-martial 'power to try any person subject to military law for any crime or offense made punishable' by the Articles of War. The defendant argues that this excludes the exercise of jurisdiction by any civil court.
A new section (article 15) states that the jurisdiction conferred upon courts-martial 'shall not be construed as depriving military commissions, provost courts, or other military tribunals of concurrent jurisdiction' over offenses triable by those bodies. The point is made by the defendant that the words 'civil tribunals' are not specifically included, and it is argued that their former concurrent jurisdiction is thereby inferentially repealed.
The new articles show recognition of the existence and procedure of civil criminal courts by the wording of the authority to subpoena witnesses before courts-martial and by the authority to punish those who disobey subpoenas, through a proceeding 'in the District Court of the United States, ' and add the words 'jurisdiction being hereby conferred upon such courts for such purpose' (articles 22 and 23). This last provision was evidently made necessary from the fact that the District Courts of the United States did not have, prior to this legislation, jurisdiction to punish for contempt committed before a court-martial or in defiance of its subpoena. But the defendant argues that these words show a limitation of the jurisdiction of the District Court to the express powers therein conferred.
The other sections of the new Articles of War present no phase of the present subject different from the former articles until we reach section 74, under the general subdivision of 'Arrest-- Confinement.' Article 74 () provides that:
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