68 Fla. 23 | Fla. | 1914
John P. Lee, an officer on the supernumerary list of the National Guard of the State of Florida, commissioned as second lieutenant, was arraigned before and tried by a General Court Martial, convened by the Governor as Commander-in-Chief of the National Guard of the State of Florida, sitting in Duval County, .on two. charges, the first for an offense in viola tion of the 21st Article of War and the second for an offense in violation of the 62nd Article of War, specifica
The first point presented to us for determination is as to whether or not the Court Martial which tried Lee had jurisdiction of his person and of the subject-matter embraced in the charges presented to the Court Martial and upon which he was convicted. As we have several times held, habeas corpus cannot be used to take the place, or to serve the purpose, of a writ of error to determine whether a judgment is erroneous, when the court has jurisdictiofi of the person and the conviction is of an offense under the law and within the jurisdiction of the court to try. Hardee v. Brown, 56 Fla. 377, 47 South. Rep. 834, and Kinkaid v. Jackson, 66 Fla. 378, 63 South. Rep. 706, wherein prior decisions of this court will be found cited. As was held
The first contention made on behalf of the defendant in error, as we understand it, is that the general court martial by which he was tried and convicted was without jurisdiction over his person, and hence he should have been discharged. We call attention to the fact that, as is shown by the transcript of the record, this was one of the contentions made before the Circuit Judge in the habeas corpus proceedings, but it would seem that he was not impressed with its soundness, as is shown by his order or judgment, which reads as follows:
“In Re Application John P. Lee for Habeas Corpus.
This matter coming on to be heard upon the petition for a writ of habeas corpus and the return of W. H. Dowling, as the Sheriff of Duval County, Florida, and having been argued by counsel, and it appearing to the court that the second charge and the specifications thereto in the proceedings of the Court Martial not constituting in law an an offense against the laws of the State of Florida, and it appearing that the sentence imposed was based upon the conviction of the said John P. Lee of said illegal charge:
Done and ordered this October 1st, 1913.
DANIEL A. SIMMONS, Judge.”
It is conceded by the defendant in error that general courts martial, under the authority conferred by the constitution and statutes of this State, have jurisdiction over the persons of non-commissioned officers and enlisted men, but it is urged that such courts martial have not jurisdiction over commissioned officers. As is admitted by the respective parties, Chapter 6501 of the Laws of Florida, Acts of 1913, page 332, has no applicability in the instant casé for the reason that such chapter did not go into effect or become operative until after the’ commission of the offenses with which Lee was charged. We are of the opinion that this contention has not been sustained. It seems to us that the provisions of Section 25 of Chapter 5930 of the Laws of Florida, amending Section 703 of the General Statutes, found on page 96 of the Acts of 1909, are sufficiently broad to embrace commissioned officers. This section reads as follows:
“Sec. 25. That Section 703, of the General Statutes of the State of Florida, be and the same is hereby amended so as to read as follows:
703. Courts-Martial. — General courts-martial may be convened by order of the Commander-in-Chief or of any general officer, and such courts shall have power to im
We further find that Section 23 of such Chapter 5930, found on page 95 of the Acts of 1909, reads as follows:
“Sec. 23. That Section 699, of the General Statutes of the State of Florida, be and the same is hereby amended so as to read as follows:
699. Articles of War. — The Articles of War governing the armies of the United States shall be applicable to and shall govern the National Guard of Florida insofar as they are not inconsistent with the Constitution and laws of this State.”
Turning to the Articles of War, referred to in the above quoted Section 23, we find that Article 62 and 79 are as follows:
“Art. 62. (Grimes ancl disorders to prejudice of military discipline.) All crimes not capital, and all disorders and neglects which officers and soldiers may be guilty of, to the prejudice of good order and military discipline, though not mentioned in the foregoing articles of war, are to be taken cognizance of by a general, or a regimental, garrison, or field-officers’ court marshal (martial), according to the nature and degree of the offense, and punished at the discretion of such court.” (R. S. Sec. 1342.)
“Art. 79. (Officers triable by general courts-martial.) Officers shall be tried only by general courts-marial; and no officer shall, when it can be avoided, be tried by offi cers inferior to him in rank.” (R. S. Sec. 1342.)
These Articles will be found on pages 495 and 499 of Yol. 1, of Federal Statutes Annotated.
It is further urged by the defendant in error in support of his contention that general courts-martial have
“Art. 64. (All troops subject to articles of war.) The officers and soldiers of any troops, whether militia or others, mustered and in pay of the United States, shall, at all times and in all places, be governed by the articles of war, and shall be subject to be tried by courts-martial. (R. S. Sec. 1342.)”
Read in connection with the other Articles of War which we have copied above and construed in the light of our own quoted statutes, it is apparent that this Article 64 has no applicability to the instant case.
WTe are impelled to the conclusion that the general court martial which tried Lee did have jurisdiction over his person. In this holding we would seem to be in accord with the Circuit Judge.
As we have previously set forth, Lee was tried for two offenses and convicted of each charge. In the habeas corpus proceedings the Circuit Judge held that the second charge constituted no offense against the laws of this State and for that reason and on that ground discharged the petitioner, as is shown by this order which we have copied above. It was not set forth in the petition pre sented to the Circuit Judge for the writ of habeas corpus, nor does it seem to have been contended before him, that the first charge upon which the defendant in' error was tried and convicted, did no.t constitute an offense under the laws of this State. Neither, is this contention made here. Assuming, then, that the first charge did constitute an offense under the laws of this State and that the second charge did not,' though we do not decide that
It necessarily follows from what we have said that the judgment must be reversed at the cost of the defendant in error.
Judgment reversed.