Closson v. United States ex rel. Armes, No. 522

No. 522 | D.C. Cir. | Jan 6, 1896

Mr. Justice Morris

delivered the opinion of the Court:

This case is not that of a civilian ruthlessly imprisoned by arbitrary military authority. The appellee is an officer of the army of the United States, entitled to wear its uniform and to draw pay as such, and by express provision of the statute law of the United States for the government of the army, made subject to the rules and articles of war, and to trial by court-martial for any infraction of those artides. Rev. Stats. U. S., sec. 1256. Nor is the force of the statute broken by the fact that the duties of a retired officer, such as the appellee is, are of an exceedingly limited character, being restricted substantially to drawing his pay, reporting his place of residence to the War Department monthly, and being assignable to duty at the Soldiers’ Home, and, at his own request, to duty as professor in any college; and that, subject to these restrictions, a retired officer of the army may enter into any private business into which he chooses to embark, not inconsistent with his duties to the United States. In the nature of things, some of the articles of war cannot apply to retired officers, for the reason that either in express terms or by necessary implication, they concern the duties of those in active service. But so far as the articles of war can be applicable to the retired officers of the army, the statute unquestionably makes these latter subject to them and to all the processes of the military law for all offences committed by them in violation of those articles.

Now it cannot reasonably be doubted that the charges against the appellee in this case are of offences against the military law, of which retired officers, as well as officers in the active service, may be equally guilty. These are: 1. Conduct to the prejudice of good order and military discipline ; and, 2. Conduct unbecoming an officer and a gentleman ; and the specification under each charge is the statement of the exceedingly intemperate and improper letter written by the appellee to the general commanding the army, which is set forth in full in the appellant’s return to the writ served upon him. If there were occasion to conjecture what the purpose of Congress was in holding retired officers of the army to trial by court-martial for infractions of military law, and what the offences were which it was contemplated they might commit, no better illustration could be afforded of the subject than the offences here charged against the appellee. It would be difficult to conceive a case tp which the statute would be more appropriate.

The appellee, therefore, being an officer of the army, although on the retired list, and subject as such to trial by court-martial for violation of the articles of war, and the charges against him being for offences against those articles, such as have been stated, his arrest'to answer those charges was right and proper. Actual arrest, or some equivalent of it, is an essential prerequisite under our system of criminal jurisprudence to the exercise of jurisdiction by any court having cognizance of criminal causes. It is an elementary principle in our law that.no man is to be tried for crime in his absence. The arraignment of an accused person in court to hear the charge against him and to respond to it is essential to give validity to any proceeding thereon against him ; and the only mode known to our law to secure the presence of such accused person for the purpose is by arrest. It is very true that an accused person may come in and voluntarily surrender himself; and that thereupon a court may proceed without the usual preliminary arrest. But upon his surrender, he is in fact, and in contemplation of law, under arrest, and subject to detention. This is the law with reference to offences cognizable by the ordinary tribunals of the common law; and we see no reason why it should not be held to be the law with regard to offences cognizable by courts-martial. But we are not left to mere inference in this matter. For Article 65 of the articles of war specifically provides that “ officers charged with crime shall be arrested.”’ It is vain to argue that the term crime here is to be taken in the technical sense of a felony; for no such distinction is justified by the articles of war or by the dictates of reason.

It is very plain to. us, therefore, that the appellee, as a retired officer of the army of the United States, was subject to arrest and detention by the military authorities to answer before a court-martial on the charges preferred against him. Nor is this conclusion invalidated in the slightest degree by the proposition laid down by some of the writers on military law to this effect:

“ Arrest is not an essential preliminary to a military trial; to give the court jurisdiction it is not necessary that the accused should have been arrested ; it is sufficient if he voluntarily, or in obedience to an order directing him to do so, appears and submits himself to trial.”

For this means no more than that an officer may, voluntarily, place himself under arrest, just as any person accused of offence under the common law, may come in and submit himself to authority without formal arrest .in the regular way. It would be absurd to conclude that arrest is improper, because the accused might come in voluntarily, or upon mere notice, and submit to trial without arrest.

But it is argued that the arrest of the appellee in this case was illegal, because he was taken by the military authorities from his own house and confined in military barracks belonging to the United States, which constituted the nearest military post. In this argument it seems to be forgotten that the appellee is not a civilian, but an officer of the army of the United States, subject to trial by court-martial, and to such arrest and detention as will secure his presence before such court-martial. It might well be questioned whether it would be proper for the military authorities to convert the appellee’s residence into a temporary prison for his detention and to station a guard before it. Such an exercise of the right of arrest might subject the military authorities to grave criticism and censure. If the military authorities had the right under the law and the articles of war to arrest the appellee, as we hold they had, and to detain him for trial before a court-martial, it is not apparent to us how the place of his detention can become a material question so as to affect the validity of the arrest.

Article 65 of the articles of war, already cited, provides as follows:

“ Officers charged with crime shall be arrested and confined to their barracks, quarters or tents, and deprived of their swords by the commanding officer. And any officer who leaves his confinement before he is set at liberty by his commanding officer shall be dismissed from the service.”

There is likewise an army regulation made in pursuance of law which provides that—

“An arrest may be imposed by the order of the commanding officer, given by him in person or conveyed through his staff officer, either orally or in writing. The officer upon whom it is imposed will repair at once to his tent or quarters, and confine himself to the same until more extended limits have been'granted.”

Both Article 65 and the regulation cited undoubtedly had reference, in the first instance and at the time when they were enacted into law, to officers in the active service; and for the very good reason that at that time there was no provision of law for a retired list. But when Congress thought proper to provide for the retirement of officers, and enacted that such officers, notwithstanding their retirement, should be amenable to the articles of war and subject to trial by court-martial, and therefore necessarily liable to arrest and detention for the purpose of such trial, we cannot say that the act of Congress is inoperative and incapable of being enforced, because retired officers have no “barracks, quarters or .tents,” in any proper sense of those words, to which they could properly confine themselves or be confined. We cannot argue from these terms that an officer, even in the active service, could not be properly arrested on the march or on the field of battle, because perchance there are no barracks, quarters or tents available for his detention. The logical result of such an argument would be subversive of all military discipline, and destructive of the legitimate purposes for which armies are maintained.

Arrest is one thing; custody or detention, another. Where arrest is authorized, and there is no specifie or sufficient provision for detention, such reasonable means of custody may be used as are available. If there is no jail in a county or judicial district, or none available, a sheriff may confine a prisoner in his own house, or in any other place which may .be reasonably proper under the circumstances for the purpose. And for the same reason, when an officer of the army is arrested who has no barracks, quarters or tents, it is not apparent why he should not be confined in the barracks, quarters or tents most available— those of the nearest military post. The military authorities are entitled to have the custody of his person; and there is no place where they can more properly have that custody than at their nearest military post.

Moreover, even if there is excess or abuse in the mode of the detention of an accused'person, it does not follow that the excess or abuse may be remedied by the writ of habeas corpus. Such excess or abuse is not without remedy ; but it must be a very grave and unusual case that would justify recourse to the writ of habeas corpus for the total discharge of the prisoner from all confinement.

It may be that in this case milder measures might have sufficed, or that it might have been wiser to take no notice of the offence of the appellee. Ordinarily, an officer charged with infraction of military law, is not placed in close confinement under guard. As under the common law, bail is taken for most offences, so in the military service an officer’s word of honor is regarded as sufficient to insure his presence before a court-martial when required; and consequently his arrest and detention aré in general merely constructive. But it cannot reasonably be maintained, either in the common law or in the military law, that strict confinement may not be ordered in proper cases. That, therefore, the military authorities in the present instance thought proper to insist on rigorous action towards the appellee, does not justify us in characterizing that action as either arbitrary or tyrannical. And certainly it does not justify us in applying to harshness or caprice the remedy of habeas corpus, where there is the unquestionable right of arrest and detention.

But it is urged, in the next place, that the detention of the appellee, without the existence of charges, invalidated his arrest and confinement. If by this is meant that, before an officer of the army of the United States can be placed under arrest and held for trial under the articles of war, formal charges in writing, with specifications in due form, such as are set forth in the record in this case, must have been preferred against him, the position is not tenable for a moment. Lord Coke seems to have thought that, at the common law, indictment or information was necessary before there could be a lawful arrest. But that theory was repudiated long ago; in fact, very soon after it was advanced ; and it has long been the settled law, both of England and the United States, that indictment or information is never required in any case as a prerequisite to arrest and detention. Warrant is required in some cases, with affidavit or other testimony to support it, to justify an arrest; and in other cases, there may be an arrest without warrant.

There is no reason to hold that it is different in the military law. That law cannot be more jealous of the liberty of its officers than is the common law of the liberty of its citizens. The fact of the commission of apparent crime or offence is the primary ground for arrest in either system of jurisprudence. If, in either system an officer charged with the duty of making arrests has personal knowledge that an offence has been committed, he is entitled to arrest without warrant, or without the issue of formal order to that effect, as the case may be. The exigencies of the military service imperatively demand that, when an offence against the articles of war has been committed in the presence of a commanding officer, he should have the right immediately to place the offender under arrest. Both the general commanding the army and the Secretary of War have that right; and whether the offence charged against the appellee be regarded as having been committed in the presence of the general commanding the army or of the Secretary of War, in both which capacities General Schofield was acting at the time, it is clear that in either capacity he was entitled to order the offender under instant arrest. The offence was flagrant. Whatever reason the appellee may-have had for thinking that he had justification or provocation for his conduct, his letter on its face was a direct personal insult to his commanding officer, and a most grave offence against the military law committed in the actual presence and in the personal knowledge of that commanding officer; and to hold that that officer was not entitled, if he so thought proper, to take immediate cognizance of it by directing the arrest of the offender would be to nullify the articles of war, to subvert the discipline of the army, and to destroy the efficiency of that body. If the honor of an officer on the retired list requires vindication, it does not seem to us that for that purpose he is entitled to insult his commanding officer with impunity, and to escape arrest therefor and be at large, until specific charges therefor have been formulated and served upon him.

The provisions of Article 71 of the articles of war fully corroborate this view. That article provides that “ when an officer is put in arrest for the purpose of trial, the officer, by whose order he is arrested, shall see that a copy of the charges on which he is to be tried is served upon him within eight days after his arrest.” Now, if the charges have already been formulated and communicated to him before his arrest, the service of a copy within eight days thereafter would be a work of most useless supererogation.

In this connection, also, the provisions of the Fifth and Sixth Amendments to the Constitution are invoked, which require that no man shall be deprived of life, liberty, or property without due process of law, and that in criminal prosecutions the accused shall enjoy the right to be informed of the nature and cause of the accusation against him. But even if it be conceded that these provisions apply to persons in the military service, with regard to which there seems to be some room for question, their requirements are gratified if the arrest has been in accordance with law and military usages, and formal charges are preferred within a reasonable time after the arrest, which reasonable time the article of war last cited has fixed at eight days.

The plain import of the. law we conclude to be:

1. That when an officer in the military service commits an offence against the articles of war in the presence of his commanding officer, or to the personal knowledge of that commanding officer, he may forthwith be ordered under arrest and detained in suitable military custody, and there is no necessity for any formal announcement to him of the nature and cause of the accusation against him; for he already knows it:

2. That where a commanding officer does not act upon his own knowledge, but upon statements communicated to him by others, and he prefers, without personal investigation, to act upon such statements, it is proper that a retired officer should, at or before the time of his arrest, and either verbally or in the order of arrest, be advised of the charge against him ; but such charge need not then be formulated ; and the failure to notify the accused in an informal way of the nature of the accusation against him does not render the arrest invalid; provided that in due time thereafter, that is, within eight days after- the arrest, formal charges are preferred and a copy of the charges is served upon him, according to the requirement of the statute :

3. That when an officer in the military service is arrested by order by his commanding officer, with or without cause assigned at the time, and charges in due form are preferred against him within the prescribed time thereafter, the proceeding is regular, and the person so arrested is not entitled to be released upon writ of habeas corpus. While this writ may be used to relieve officers in the military service from illegal detention at the hands of their commanding officers or of military tribunals, such use must be with great caution, in view of the special nature of military service and of the contract entered into by those who engage in that service, and who thereby deliberately and for a consideration surrender to a great extent their rights and immunities as citizens.

The consideration is further urged upon us that the appellee cannot now properly be returned to the military custody, inasmuch as the time limited for his trial by the articles of war has elapsed, and on account of such lapse those articles require his discharge from arrest. This proposition is advanced under article 71, already cited, which, after the provision in reference to the service of a copy of the charges within eight days after the arrest, heretofore considered, proceeds to enact that the officer causing the arrest shall see that the arrested officer “ is brought to trial within ten days thereafter (that is, ten days after the service of charges), unless the necessities of the service prevent such trial; and then he shall be brought to trial within thirty days after the expiration of said ten days.” And it adds: “ If a copy of the charges be not served, or the arrested officer be not brought to trial, as herein required, the arrest shall cease; but officers released from arrest under the provisions of this article, may be tried, whenever the exigencies of the service shall permit, within twelve months after such release from arrest.” It is argued that the proceedings under the writ of habeas corpus in no way delayed or hindered court-martial proceedings, that arrest was not essential in order that such proceedings should go on, and that, therefore, the failure of the military authorities to proceed in due time with the trial of the appellee operated to effect his discharge from custody.

We cannot concur in this argument. The arrest and detention of the appellee to answer the charges against him were the proper and necessary steps preliminary to his trial. With some qualifications due to the nature of the service, no more in the military law than in the common law is it proper to proceed with the trial of an accused person in his rbsence. To proceed to the trial of a person upon a charge of crime, who is not present in court, either as the consequence of arrest and detention for the purpose or of voluntary appearance, surrender and submission to the jurisdiction of the court, is a thing utterly unknown to our jurisprudence ; and the voluntary appearance of an accused person under such circumstances is never to be presumed, so as to authorize a court to proceed with his trial. It was necessary, therefore, to secure the presence of the appellee before any trial could be entered upon by a court-martial of the charges against him. Now that presence could not be secured while the accused was in the custody and under the control of a court of common law under the writ of habeas corpus. It would have béen improper for a court-martial to proceed, while the question of the validity of the arrest, upon which its jurisdiction depended, was in controversy undetermined and pending in the court of common law. And, of course, after the final discharge of the appellee by the court below, as long as its decision stands, the ground of jurisdiction in the court-martial is gone. There could be no trial of the appellee without another arrest.

The service of the writ of habeas corpus and the release and discharge of the appellee thereunder operated in law to suspend all further proceedings by the military authorities to bring the appellee to trial, until the matter of the legality of his arrest and detention was duly determined by the courts of common law. In civil proceedings, a writ of injunction against proceedings at law can be made effective through a court of equity against the running of the statute of limitations, notwithstanding the usually inelastic provisions of that statute. When, as in the present instance, it is provided that trial by a court-martial may be had after the lapse of ten days first specified, if the exigencies of the service should prevent a trial within that time, although thereupon another limitation of thirty days is provided, it is very plain that the purposes of justice ought not to be thwarted by the pendency of proceedings procured by the appellee, which had the effect, whether so intended by him or not, if his present contention be correct, to enable him to evade and escape the trial by court-martial to which otherwise he would have been properly subjected. It cannot be that the issue of a writ of habeas corpus can thus be made to defeat the ends of justice and to nullify the requirements of the military law, which, after all, is as much part of our jurisprudence as is the common law itself, although necessarily more rigidly guarded and watched with more jealousy.

It appears in the present case that a copy of the charges against the appellee was duly forwarded by the appellant to the appellee within eight days after his arrest, in accordance with the requirements of article 71 of the articles of war; and in a collateral proceeding, like the present, we are entitled to presume that it was received by the appellee, and that there was the service of charges contemplated by the statute. The appellee had then been taken out of the custody and control of the military authorities ; and consequently it might well be held that the time limited by the article for the trial of the accused never commenced to run.

But in whatever aspect we view this question, it is clear to us that the jurisdiction of the court-martial to try the appellee upon the charges preferred against him is not ousted by the action of the appellee in evading that jurisdiction by suing out a writ of habeas corpus. And inasmuch as the custody of the person of the appellee by the military authorities is, as we have held, a necessary and proper preliminary to the exercise of that jurisdiction, it would seem to be no more than just that he should be returned to them.

In conclusion, we are of the opinion that the order of the justice of the Supreme Court of the District of Columbia in this case, releasing and discharging the appellee from the custody of the appellant was erroneous, and should be reversed, with costs. Accordingly, the cause will be remanded to that court, with directions to vacate that order, to issue its warrant to the marshal of the District of Columbia for the rearrest of the appellee, to discharge the writ of habeas corpus, and to remand the appellee to the custody of the appellant. And it is so ordered.