Waite v. Overlade, 9362.
| Decision Date | 10 January 1948 |
| Docket Number | No. 9362.,9362. |
| Citation | 164 F.2d 722 |
| Parties | WAITE v. OVERLADE. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Gilbert W. Gambill, Benjamin G. Cox, Gambill, Dudley, Cox & Crawford, and Eaton J. Dudley, all of Terre Haute, Ind., for appellant.
Lt. Col. Nicholas R. Voorhis, of Washington, D. C., Office of Judge Advocate General, B. Howard Caughran, U. S. Atty., of Indianapolis, Ind., and Thayer Chapman, Major, J A G D, Judge Advocate General's Office, of Washington, D. C., for appellee.
Before SPARKS and KERNER, Circuit Judges, and LINDLEY, District Judge.
Appellant filed his petition for writ of habeas corpus to secure his release from prison where he is serving a sentence of ten years' imprisonment on conviction by a court-martial of the charge of rape. The District Court, after hearing his testimony and that of respondent, and considering the record of the court-martial proceedings and other exhibits introduced in evidence, rendered special findings of fact and conclusions of law and entered his judgment discharging the writ and remanding appellant to the custody of respondent. From that judgment the appeal is prosecuted.
The District Court found that appellant was confined by virtue of the order of a General Court-Martial duly appointed by the Commanding Officer of the Western Base Section of the Services of Supply of the European Theater of Operations, United States Army, for the trial of such persons as might properly be brought before it; that on August 3, 1943, appellant, then a member of a replacement unit stationed in Lancashire, England, was arrested on charges of rape, and, thereafter, written charges were preferred against him for violation of the 92nd Article of War, which charges were duly investigated and referred to the General Court-Martial duly convened at Seaforth Barracks, Lancashire, England; that a trial of the charges was had on August 26 and 27, conducted in all respects in compliance with the Articles of War and the Manual for Courts-Martial; that appellant was represented by counsel duly appointed for that purpose, and that he and his counsel had a true copy of the charges against him nine days before commencement of the trial; that thereafter, the court, by secret ballot, found appellant guilty and sentenced him to dishonorable discharge, loss of pay, and confinement at hard labor for life.1 The court further found that after the trial, the Commanding General in his capacity as reviewing authority, approved the sentence but reduced the period of confinement to twenty years; that thereafter, the Board of Review established for the Branch Office of the Judge Advocate General for the European Theater duly reviewed the proceedings and concluded that the record of the trial was legally sufficient to support the finding of guilty and the sentence as modified by the reviewing authority, as established in compliance with Article of War 50½, 10 U.S.C.A. § 1522; and that the sentence was again reduced by the Secretary of War by direction of the President to 15 years.2 The court further found that the trial was conducted as a judicial investigation to determine the guilt or innocence of petitioner, and that his rights and defense were actively asserted. It therefore concluded that appellant's confinement was legal, and that he was not entitled to be released therefrom.
On appeal appellant asserts that the court-martial was without jurisdiction to try him because proper procedures had not been followed with respect to pre-trial investigation, and that the alleged failure to comply with statutory requirements as to the constitution of the court-martial and conduct of the trial render the judgment of the court invalid.
The questions presented by petition to a civil court for inquiry into the judgment of a court-martial have been frequently stated: Collins v. McDonald, 258 U.S. 416, 42 S.Ct. 326, 327, 66 L. Ed. 692.
These principles were most recently reiterated in the case, In re Yamashita, 327 U.S. 1, 66 S.Ct. 340, 344, 90 L.Ed. 499, where the Court said: ...
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