Wade v. Hunter

• Decision Date: 09 May 1947
• Docket Number: No. 980.,980.
• Citation: 72 F. Supp. 755
• Parties: WADE v. HUNTER.
• Court: U.S. District Court — District of Kansas

72 F. Supp. 755

WADE v. HUNTER.

No. 980.

District Court, D. Kansas, First Division.

May 9, 1947.

Richard T. Brewster, of Kansas City, and N. E. Snyder, of Kansas City, Kan., for petitioner.

Randolph Carpenter, U. S. Atty., Eugene W. Davis, Asst. U. S. Atty. and James W. Wallace, Asst. U. S. Atty., all of Topeka, Kan. (Colonel William J. Hughes, Jr., JAGD, of Washington, D. C., and Colonel Franklin Riter, JAGD, of Salt Lake City, Utah, on the brief), for respondent.

MELLOTT, District Judge.

Petitioner, an inmate of the United States Penitentiary at Leavenworth, Kansas, assails, by a petition for a writ of habeas corpus, the legality of his commitment and detention. Copy of the order of a general court-martial¹ under which he is held is attached to his petition and to the response of the Warden. Petitioner alleges that the order is illegal and void for several reasons, the chief one urged being that he had been twice put in jeopardy for the same offense in violation of the Fifth Amendment to the Constitution and the Fortieth Article of War, 10 U.S.C.A. § 1511.

There is no controversy between the parties as to the facts. Each specifically adopts the statement of facts set out in the holding of Board of Review No. 4 of the Branch Office of The Judge Advocate General with the European Theater, introduced in evidence in this proceeding. This court, therefore, specifically finds the facts to be as shown in such holding, summarizing them for present purposes and showing in footnotes some portions of the record of trial, deemed to be essential to an understanding of the issue to be determined.

Petitioner, then a Private First Class of Company K, 385th Infantry, and Thomas Cooper, a Private First Class in the same company, were arraigned separately and tried together with their consent, upon charges of violation of the 92nd Article of War, 10 U.S.C.A. § 1564, the specification, in each instance, being that the accused, on or about 14 March 1945, had forcibly and feloniously had carnal knowledge of a different named German female against her will. Cooper was acquitted and petitioner was convicted. Petitioner was sentenced to be dishonorably discharged from the service, to forfeit all pay and allowances due or to become due, and to be confined at hard labor, at such place as the reviewing authority should direct, for the term of his natural life. The reviewing authority approved the sentence but reduced the period of confinement to 20 years.¹

When the general court-martial, which found petitioner guilty, convened at Bad Neuenahr, Germany, on 30 June, 1945, petitioner interposed a plea in bar on the ground of former jeopardy; but, at the suggestion of the court, the plea was reserved until arraignment. Upon arraignment the plea in bar was renewed. Extended argument upon the plea in bar ensued and a duly authenticated record of a former trial of the accused at Pfalzfeld, Germany, 27 March 1945 by a general court-martial appointed by the Commanding General, 76th Infantry Division, was introduced. There is shown in the margin the initial statement of counsel for the defendant made at that time.²

There is set out, at this juncture, a paragraph from the opinion of the Board of Review. "The record of former trial discloses that Wade was tried before a court of competent jurisdiction upon the Charge and Specification involved here. He was arraigned and issues were joined by his plea to the general issue (Def.Ex. A, pp. 5, 6); the prosecution introduced evidence and rested (Def.Ex. A, pp. 7-22); and the defense introduced evidence and rested (Def.Ex. A, pp. 22-60). Both the prosecution and the defense then stated they had nothing further to offer, the court stated it did not desire any witnesses called or recalled, and, after arguments were made, the case was submitted and the court was closed (Def.Ex. A, p. 60). The court was opened later and announced that it desired to hear other named witnesses, and continued the case until a date to be fixed by the trial Judge Advocate (Def.Ex. A, p. 60). Seven days thereafter, on 3 April 1945, and prior to further action by the court, the appointing authority withdrew the charges, and directed that no further proceedings be taken by the court in connection therewith (Pros.Ex. A). On the same day he transmitted the charges and allied papers to the Commanding General, Third United States Army, with a recommendation for trial by general court-martial, stating that the case had been continued because of the unavailability of two witnesses due to illness, and that the tactical situation made the obtainment of the witnesses impracticable and precluded prompt disposition of the case (Charge Sheet, 4th Ind.). Thereafter, on 18 April 1945, the Commanding General, Third United States Army, transmitted the charges and allied papers to the Commanding General, Fifteenth United States Army, requesting that he assume court-martial jurisdiction because the civilian witnesses were residents of the territory under his jurisdiction (Charge Sheet, 5th Ind.). The Commanding General, Fifteenth United States Army, in compliance with this request, assumed court-martial jurisdiction, and on 26 April 1945, referred the case for trial by general court-martial (Charge Sheet, 1st Ind.)."

The documents referred to in the quoted paragraph are in evidence before this court. They support the statements made by the Board of Review. This opinion will be more understandable if some of them are referred to in more detail. First, then, reference will be made to the "closing" and "opening" of the court-martial. Following the announcement by counsel that "the defense rests" the prosecution announced that it had nothing further to offer and inquired whether the court wished to have any witnesses called or recalled. This being answered in the negative arguments were made and

"Neither the prosecution nor the defense having anything further to offer, the court was closed.

"The court was opened.

"Law Member: The court desires that further witnesses be called into the case, and to allow time to secure these witnesses, this case will be continued. We would like to have as witnesses brought before the court, the parents of this person making the accusation, Rosa Glowsky, and also the sister-in-law that was in the room who could further assist in the identification or identity of the accused. The court will be continued until a later date set by the T. J. A.

"The court then, at 1700 o'clock, P. M. 27 March 1945, adjourned to meet at the call of the president."

The withdrawal of the charge and the direction that no further proceedings be taken by the court, referred to by the Board of Review in the portion of its opinion or statement of facts set out above, are indicated in a communication from Headquarters, 76th Infantry Division, A. P. O. 76, U. S. Army to the Commanding General, Third U. S. Army, A. P. O. 403, shown in the margin.³

After receipt of the charges and allied papers by the Third United States Army on or about 3 April, 1945 and on or about 18 April 1945 it, through the Assistant Adjutant General for the Commanding General, transmitted the charges and allied papers to the Commanding General, Fifteenth U. S. Army, A.P.O. 408, copy of this communication being shown in the margin.⁴ The Commanding General, Fifteenth United States Army, in compliance with this request, assumed court-martial jurisdiction, and on 26 April, 1945 referred the case for trial by general court-martial. Before doing so, however, communication was addressed to Commanding General, First Army, advising that Wade was claiming prior trial for same offense and asking that certified record of trial, if any, and copy of withdrawing order be transmitted.

Apparently in conformity with the request —in any event following it in the trial record—a brief of the Trial Judge Advocate on the subject of "Double Jeopardy" was filed. The conclusion of the Trial Judge Advocate, as therein expressed, was that "Private Wade has not been tried on a former occasion for the offense for which he is now being put on trial." This was premised upon essentially the same line of reasoning as that adopted by the Assistant Judge Advocate General in his communication to the Commanding General, United States Forces, European Theater (Main) A.P.O. 757, U. S. Army, advising that he did not concur in the holding of the Board of Review that the record of trial was legally insufficient and recommending a contrary holding. The brief of the respondent, filed in this proceeding, espouses the same view.

The question which evolves and as to which several well-trained and reputable members of the bar divide about equally,⁵ is whether petitioner has been twice put in jeopardy for the same offense in violation of the Fifth Amendment to the Constitution. A preliminary issue is whether this court has any jurisdiction to determine the question in a habeas corpus proceeding. An incidental, although by no means an inconsequential question, is whether the doctrine of "Imperious Necessity" or "Urgent Necessity", authorized the Commanding General of the 76th Infantry Division, in the exercise of his sound discretion, to stop the first trial, withdraw the charges and refer them to the Commanding General of the Third Army for re-trial without hazarding the accused's claim that he had been placed in jeopardy by the proceedings before the 76th Infantry Division Court.

At the outset it may be said that this court recognizes the limited scope of its inquiry under a petition for a writ of habeas corpus. As learned counsel for the respondent correctly point out upon brief, this court is not an appellate tribunal sitting in review of court-martial judgments, and it will not arrogate to itself an examination of the record of trial for the purpose of determining whether errors were committed in the reception or rejection of evidence or whether the finding of guilt was sustained by the evidence. C...