Whelchel v. McDonald, 12760.
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
| Writing for the Court | HUTCHESON, SIBLEY, and WALLER, Circuit |
| Citation | 176 F.2d 260 |
| Parties | WHELCHEL v. McDONALD, Warden. |
| Docket Number | No. 12760.,12760. |
| Decision Date | 22 July 1949 |
176 F.2d 260 (1949)
WHELCHEL
v.
McDONALD, Warden.
No. 12760.
United States Court of Appeals Fifth Circuit.
July 22, 1949.
Hugh Carney, Atlanta, Texas, for appellant.
Steve M. King, U. S. Attorney, Beaumont, Texas, Nicholas R. Voorhis, Lt. Col., Washington, D. C., Office of Judge Advocate Gen., Warren G. Moore, U. S. Attorney, Tyler, Texas, Reginald C. Miller, Lt. Col., J. A. G. C. Office of Judge Advocate Gen., Washington, D. C., for appellee.
Before HUTCHESON, SIBLEY, and WALLER, Circuit Judges.
SIBLEY, Circuit Judge.
Appellant, Marton L. Whelchel, was tried and convicted for rape on a German girl and sentenced to death by a general court-martial held at Immerath, Germany, on April 10, 1945, he being a private in a Tank Destroyer Battalion on active war duty. The sentence was commuted to life imprisonment by General Dwight D.
On this appeal two points only are argued: 1. The court was composed of officers alone, with no provision of law for including any members of the private soldiers' class, contrary to the Fifth and Ninth Amendments of the Constitution. 2. The reviewing authorities failed, on notice of the probable insanity of the accused at the time of the offense and of his trial, to halt the execution of the sentence and have a thorough psychiatric examination made of him pursuant to Section 87(b) of the then Manual for Courts-Martial, and thereby deprived him of due process of law.
The Court-Martial record shows the court to have been organized according to the Articles of War, and to have proceeded regularly, the accused being represented by counsel of whom no complaint was or is made. It was composed wholly of commissioned officers, as provided by Article of War 4, 10 U.S.C.A. § 1475. Such a provision has been in all the Articles of War enacted since the adoption of our Constitution, and was in the British Articles of War of 1765, and in the American Articles of War of 1776. See Winthrop's Military Law and Precedents, Second Edition, pages 931 and ff. So far as we are informed never before has it been urged that there is constitutional infirmity in the provision. In Kahn v. Anderson, 255 U.S. 1, 41 S.Ct. 224, 65 L.Ed. 469, a sentence was imposed in the United States in time of peace, and the Articles of War were attacked as not providing for indictment and jury trial according to constitutional provisions. The court said, 255 U.S. at page 9, 41 S.Ct. at page 226: "In connection with this subject we observe that a further contention, that conceding the accused to have been subject to military law, they could not be tried by a military court because Congress was without power to so provide consistently with the guaranties as to jury trial and presentment or indictment by grand jury, respectively secured by article 1, § 8 of the Constitution, and article 5 of the Amendments, is also without foundation, since it directly denies the existence of a power in Congress exerted from the beginning, and disregards the numerous decisions of this court by which its exercise has been sustained — a situation which was so obvious more than 40 years ago as to lead...
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Bishop v. United States, 12208.
...341 U.S. 927, 71 S. Ct. 792, 95 L.Ed. 1358. 3 See Hahn v. United States, 10 Cir., 1949, 178 F.2d 11; Whelchel v. McDonald, 5 Cir., 1949, 176 F.2d 260; Byrd v. Pescor, 8 Cir., 1947, 163 F.2d 775, certiorari denied, 1948, 333 U.S. 846, 68 S.Ct. 648, 92 L.Ed. 1129; Rolfe v. Lloyd, 9 Cir., 1939......
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Massey v. Moore, 14319.
...12; Annotations on "Remedy and one convicted of crime while insane." 10 A.L.R. 213 and 121 A.L.R. 267, 270; Whelchel v. McDonald, 5 Cir., 176 F.2d 260; Dodd v. United States, 10 Cir., 196 F.2d 190. But the rule is otherwise in the Federal Court if the applicant has been adjudged insane. Ash......
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Bokoros v. Kearney, Civ. A. No. 2079.
...McMahan v. Hunter, 10 Cir., 179 F.2d 661, certiorari denied 339 U.S. 968, 70 S.Ct. 985, 94 L.Ed. 1376; and Whelchel v. McDonald, 5 Cir., 176 F.2d 260, affirmed 340 U.S. 122, 71 S.Ct. 146, 95 L.Ed....
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United States v. Bullock, Civ. A. No. 52 C 2091.
...Tuck, 194 U.S. 161, 24 S.Ct. 621, 48 L.Ed. 917; Ex parte Hawk, 321 U.S. 114, 64 S.Ct. 448, 88 L.Ed. 572; Whelchel v. McDonald, 5 Cir., 176 F.2d 260; McMahan v. Hunter, 10 Cir., 179 F.2d 661. Scrupulous adherence by the federal courts to this doctrine is required. The remedy must be exhauste......
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Bishop v. United States, 12208.
...341 U.S. 927, 71 S. Ct. 792, 95 L.Ed. 1358. 3 See Hahn v. United States, 10 Cir., 1949, 178 F.2d 11; Whelchel v. McDonald, 5 Cir., 1949, 176 F.2d 260; Byrd v. Pescor, 8 Cir., 1947, 163 F.2d 775, certiorari denied, 1948, 333 U.S. 846, 68 S.Ct. 648, 92 L.Ed. 1129; Rolfe v. Lloyd, 9 Cir., 1939......
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Massey v. Moore, 14319.
...12; Annotations on "Remedy and one convicted of crime while insane." 10 A.L.R. 213 and 121 A.L.R. 267, 270; Whelchel v. McDonald, 5 Cir., 176 F.2d 260; Dodd v. United States, 10 Cir., 196 F.2d 190. But the rule is otherwise in the Federal Court if the applicant has been adjudged insane. Ash......
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Bokoros v. Kearney, Civ. A. No. 2079.
...McMahan v. Hunter, 10 Cir., 179 F.2d 661, certiorari denied 339 U.S. 968, 70 S.Ct. 985, 94 L.Ed. 1376; and Whelchel v. McDonald, 5 Cir., 176 F.2d 260, affirmed 340 U.S. 122, 71 S.Ct. 146, 95 L.Ed....
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United States v. Bullock, Civ. A. No. 52 C 2091.
...Tuck, 194 U.S. 161, 24 S.Ct. 621, 48 L.Ed. 917; Ex parte Hawk, 321 U.S. 114, 64 S.Ct. 448, 88 L.Ed. 572; Whelchel v. McDonald, 5 Cir., 176 F.2d 260; McMahan v. Hunter, 10 Cir., 179 F.2d 661. Scrupulous adherence by the federal courts to this doctrine is required. The remedy must be exhauste......
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Judicial Review and Democratic Theory: Guardian Democracy Vs. Representative Democracy
...79 F. Supp. 516 (1948) (right to unlimited contribution to candidates and spend-ing on electoral campaigns); Whelchel v. Mcdonald, 176 F. 2d 260 (1949) (right of trialby jury of peers in court martial process); U.S. v. Fujimoto, 102 F. Supp. 890 (1952)(right to associate to advocate forcibl......