United States v. Lipsett

• Decision Date: 26 September 1907
• Citation: 156 F. 65
• Parties: UNITED STATES v. LIPSETT, Sheriff of Chippewa County. Ex parte GILLETTE.
• Court: U.S. District Court — Western District of Michigan

156 F. 65

UNITED STATES v. LIPSETT, Sheriff of Chippewa County.

Ex parte GILLETTE.

United States District Court, W.D. Michigan.

September 26, 1907

H. C Carbaugh, Judge Advocate U.S. Army, Jno. A. Hull, Judge Advocate U.S. army, and George G. Covell, U.S. Dist. Atty for the United States.

George B. Holden, Pros. Atty., for respondent.

KNAPPEN District Judge (orally).

The substantial facts are these: On or about July 22, 1907, Cyrus Gillette, a private soldier in the military service of the United States, and stationed at Ft. Brady, adjacent to Sault Ste. Marie, Mich., was acting under orders of his immediate superior officer as a military sentry over two military prisoners (at least one of whom, Hodsdon, was charged with desertion), who were engaged in work near the entrance to Ft Brady Military Reservation. While so employed, the prisoner Hodsdon attempted to escape, in such attempt running easterly in a public street. Gillette immediately called upon the prisoner to halt, and repeated his call two or three times. Hodsdon ignored the demand to halt, and continued his flight at full speed; Gillette following him as rapidly as he could (having a lame knee, and having been recently discharged from the hospital), loading his gun as he went with the guard cartridge, in preference to the service cartridge, the former having a smaller charge of explosive and a different shaped bullet from the latter, so as not to carry the bullet to such a great distance as the service cartridge does. Gillette held his fire some distance, while running, because of some children whom he saw in the street down which he was pursuing the escaping prisoner. When from 30 to 100 feet from the reservation limits Gillette fired at Hodsdon, who was from 125 to 200 feet in advance of him, still running and trying to escape. The bullet passed over Hodsdon's head and accidentally struck and killed Miss Elizabeth Cadenhead, who, with friends, was returning from a visit to Ft. Brady, and was walking along the street on which Gillette and Hodsdon were running and in the same direction, being at the time of the shooting from 375 to 475 feet ahead of Gillette, and thus from 250 to 275 feet ahead of Hodsdon. There is no claim that Gillette saw Miss Cadenhead, or any other member of her party, either before or at the time of shooting; nor that he knew of their presence in the street. The point where Miss Cadenhead stood when the shot was fired was about five feet higher than the spot where Gillette stood; the latter spot being about two feet higher than the place occupied by Hodsdon.

After the firing, Hodsdon continued his flight, turning from the street on which he was running south about 100 feet, and then southeasterly about 130 feet, and hid in a clump of bushes and trees on a private residence lot, where he was found two hours later. After he had turned south Gillette again fired at him, but without effect. Gillette was familiar with the manual of guard duty issued by the Secretary of War, which contained the provision:

'If a prisoner attempts to escape, the sentinel will call 'halt.' If he fails to halt when the sentinel has once repeated his call, and if there be no other possible means to prevent his escape, the sentinel will fire upon him.'

Which manual also contained a syllabus of the decision of the United States Circuit Court for the Eastern District of Michigan in the case of United States v. Clark, 31 F. 710, which contained, among other things, this statement:

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

Said manual also containing the circular of Colonel Morrill, addressed to the Assistant Adjutant General of the Department of Columbia, containing this statement:

'A sentinel is placed as guard over prisoners to prevent their escape, and for this purpose he is furnished a musket with ammunition. To prevent escape is his first and most important duty. * * * I suppose the law to be this: That a sentinel shall not use more force or violence to prevent the escape of a prisoner than is necessary to effect that object; but, if the prisoner, after being ordered to halt, continues his flight, the sentinel may maim or even kill him, and it is his duty to do so.'

Immediately after the shooting, Gillette was tried before a general court-martial, at Ft. Brady, Mich., on the charge of manslaughter, in violation of the sixty-second article of war; the specification being that he did 'unlawfully, willfully and feloniously kill Miss Elizabeth Cadenhead, with a United States magazine rifle, loaded with powder and ball. ' He pleaded not guilty, and was acquitted; the findings and acquittal being approved by the proper officers in these words:

'In the foregoing case of Private Cyrus Gillette, Company M, Seventh Infantry, the evidence of record clearly shows that the accused, in compliance with his orders, pursued and shot at an escaping prisoner. There is nothing that shows that the accused had any cause to believe that the unfortunate accident that took place was liable to occur from his obeying the provisions of the guard manual, and as the shot was fired without either malice or recklessness on his part, in the evident belief that he was only discharging his duty to the United States government, the findings and acquittal are approved.'

Gillette was accordingly restored to duty. He was afterwards arrested on a warrant issued by a state magistrate of Chippewa county, Mich., charging him with manslaughter in killing Miss Cadenhead. He waived examination and was held to trial before the circuit court of Chippewa county, being, pending trial, committed to jail in default of bail. The application for writ of habeas corpus was made by the United States through its district attorney, under the authority of the Attorney General of the United States, upon the ground that the state court has no jurisdiction to try Gillette for the offense charged, because the act alleged to constitute the offense was done by Gillette in the performance of his duty under the laws and authority of the United States; it being also contended on behalf of the government that the acquittal of Gillette by the court-martial is a bar to further prosecution in the state courts. The prisoner was produced in court in obedience to the writ, and hearing was had upon a stipulation of facts; no conflict of testimony being thus presented. No claim is made on the part of the state authorities that Gillette had any malice or ill will towards either Hodsdon or Miss Cadenhead, or that the homicide was other than accidental; and there is nothing in the evidence presented on the hearing reasonably tending to show, nor is it asserted, that Gillette, in firing the shot, did not act in good faith and in the supposed performance of his duty.

The defense to the writ, urged on behalf of the state authorities, is that upon the record there exists a question of fact whether there was any other possible means of preventing the escape of the fugitive than by firing, and whether Gillette exercised due care, under the circumstances disclosed by the record, in firing; the street being unobstructed, and it thus having been possible to discover that Miss Cadenhead and her companions were in the line of fire, and it being contended that, if it should be found that Gillette acted without the exercise of due care, his act became unlawful, and the homicide would be manslaughter, and that the state has the right to have the questions of fact referred to tried by a jury in the state court.

As to the effect of the former jeopardy: Whatever may have been the status of the authorities before the decision in the case of Grafton v. United States, 206 U.S. 333, 27 Sup.Ct. 749, 51 L.Ed. 1084, that decision leaves open the question of the effect of a trial and acquittal by a United States court-martial upon the right of trial in a state court for the same act charged as constituting an offense of the same kind and name. There have been two decisions in the District Courts to the effect that such acquittal by court-martial is not a bar, viz., In re Clark (C.C.) 31 F. 710, and In re Fair (C.C.) 100 F. 149, both of which cases were decided previous to the recent decision of the Supreme Court in Grafton v. United States. I do not find it necessary to pass upon the question of former jeopardy, because, in my judgment, this case can be disposed of upon other grounds.

The jurisdiction of the district judge to act in this matter is undoubted. Sections 752 and 753 of the Revised Statutes (U.S. Comp. St. 1901, p. 592) expressly give the judges of the Circuit and District Courts power to grant writs of habeas corpus for the purpose of inquiring into the cause of restraint of liberty when a prisoner is in custody for an act done in pursuance of a law of the United States. This statute has been enforced in a variety of cases, and there is no question of the power of a federal judge under it to inquire whether an act of the nature of that here involved was done in the performance of a duty arising under a law of the United States; nor is thereby any question that such act, if done in the performance of duty as a soldier in the military service of the United States, was done in pursuance of a law of the United States, and so not within the jurisdiction of a state court to try.

In Re Neagle, 135 U.S. 1, 10 Sup.Ct. 658, 34 L.Ed. 55, the petitioner, a deputy marshal assigned to protect Justice Field against apprehended violence, killed a man claimed to be attempting a deadly assault upon the justice. He was arrested by the California state authorities, and sued out a writ of habeas corpus upon the proposition that in killing...