United States v. Kinsella

• Decision Date: 06 September 1958
• Docket Number: No. 2145.,2145.
• Citation: 164 F. Supp. 707
• Court: U.S. District Court — Southern District of West Virginia
• Parties: UNITED STATES of America on the relation of Alberta SINGLETON, Petitioner, v. Nina KINSELLA, Warden of the Federal Reformatory for Women, Alderson, West Virginia.

164 F. Supp. 707

UNITED STATES of America on the relation of Alberta SINGLETON, Petitioner, v. Nina KINSELLA, Warden of the Federal Reformatory for Women, Alderson, West Virginia.

No. 2145.

United States District Court S. D. West Virginia.

September 6, 1958.

Paul M. Friedberg, Charleston, W. Va., for relator.

Duncan W. Daugherty, U. S. Atty., Huntington, W. Va., Percy H. Brown, Asst. U. S. Atty., Hinton, W. Va., Lt. Col. Peter S. Wondolowski, Judge Advocate General's Corps, United States Army, Washington, D. C., for respondent.

BEN MOORE, Chief Judge.

More than a year ago, the Supreme Court of the United States, on a rehearing, decided in the cases of Reid v. Covert (Kinsella v. Krueger), 1957, 354 U. S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148, that civilian dependents of members of the armed forces overseas in time of peace could not be tried by court-martial for capital offenses. Since that time, considering itself bound by that decision, this court granted a writ of habeas corpus in a case involving a trial by court-martial of such a civilian dependent for the unpremeditated murder of her husband, a non-capital offense. United States ex rel. Smith v. Kinsella, D.C.S.D. W.Va., No. 1963, unreported. Now petitioner asks the court to grant a writ of habeas corpus to free one Joanna S. Dial, convicted by court-martial of the non-capital offense of involuntary manslaughter of her one-year old son. She was a civilian dependent of her husband, a member of the armed forces overseas. The offense was committed in Germany.

Counsel for respondent stated at the hearing that the case of United States ex rel. Smith v. Kinsella, supra, was not appealed because of a decision by army authorities that the distinction between it and the cases of Reid v. Covert (Kinsella v. Krueger) was not plain enough on which to seek clarification of the last mentioned decision. He, however, argued that this court should not grant the writ in this case for the following reasons:

(1) Only four of the Justices of the Supreme Court who participated in the decision in Reid v. Covert (Kinsella v. Krueger) held that no offense committed by civilian dependents of members of the armed forces overseas in time of peace may be tried by court-martial, whereas two of the other Justices limited their decision in this respect to capital offenses.

(2) That since the Supreme Court decision and since the decision of this court in the case of United States ex rel. Smith v. Kinsella, supra, two district courts, in cases involving civilians employed by the armed forces overseas, who were charged with and convicted of offenses less than capital offenses, have distinguished these cases and have discharged the writs. United States ex rel. Guagliardo v. McElroy, D.C.D.C.1958, 158 F.Supp. 171; Grisham v. Taylor, D.C.M.D.Pa.1958, 161 F.Supp. 112. These two cases are said to be pending upon appeal in their respective circuits.

(3) That the United States Court of Military Appeals, in the very case now under consideration, decided on August 26, 1958, that the court-martial had constitutional power to try Joanna S. Dial as a civilian dependent accompanying the army in West Germany.

It is, of course, known that the opinion of this court prior to the decision of the Supreme Court in the cases of Reid v. Covert (Kinsella v. Krueger) was that Congress had power under Article 1, Section 8 of the Constitution of the United States...