In re Reed

20 F. Cas. 409 | U.S. Circuit Court for the District of Massachusetts | 1879

NELSON, District Judge.

This is a petition for a writ of habeas corpus to Captain S. L. Breese, in command of the United States ship Wabash, in Boston harbor, who holds the prisoner in custody under a sentence of a naval court-martial. It appears by the return of the writ, and the other evidence, that a naval general court-martial was convened on board the United States ship Essex, in the harbor of Rio Janeiro, on the first day of July, 1S7S, by order of Rear-Admiral Edward T. Nichols, commanding the naval forces of the United States on the South Atlantic station, for the trial of the prisoner, a paymaster’s clerk of the navy, attached to and serving on board the flagship Hartford, upon charges and specifications preferred against him for alleged violations of article 34 of the articles for the government of the navy, Rev. St. U. S. art. 14, § 1S24. The prisoner was tried and found guilty of the offences charged against him. and was sentenced by-the court to “a fine of five hundred dollars and imprisonment for one year in any prison or penitentiary designated by the honorable secretary of the navy; and if fine be unpaid at expiration of imprisonment, to remain in such prison or penitentiary until such fine be paid to the government; at the expiration of his confinement to be dishonorably discharged from the service of the United States; to lose all pay except fifty dollars per mouth during such confinement.'’ The record of the proceedings having been made up and transmitted to Rear-Admiral Nichols, that officer refused to confirm the sentence, and returned the record to the court for revision of sentence, and at the same time, by a letter addressed to the court, called attention to section 1024, art. 51, of the Revised Statutes, which provides that “it shall be the duty of a court-martial in all cases of conviction to adjudge.a punishment adequate to the nature of the offence,” and suggested that the seu-teuce imposed was not sufficiently severe to meet the requirements of that article. The court thereupon proceeded to revise the case, revoked the former sentence, and in substitution therefor sentenced the prisoner to-“be imprisoned in such place as the honorable secretary of the navy may designate for the term of two years, to lose all pay which may become due him during such confinement, excepting the sum of ten dollars a month, this loss amounting to one thousand nine hundred and sixty dollars; to be fined in the sum of five hundred dollars, which sum must be nhid before or at the end of term of confinement. Should such fine not be paid at end of term of confinement, to be detained in confinement without pay until such fine be paid, and at expiration of term of confinement to be dishonorably discharged from the service of the United States.” The record was again forwarded to Rear-Admiral Nichols, and the new sentence was confirmed by him. The prisoner is now held in the custody of Captain Breese under this sentence.

The prisoner claims that the proceedings of the court-martial are void, and his imprisonment under its sentence illegal, for two reasons.

The first reason assigned is, that as paymaster’s clerk he was not in the naval service. of the United States, within the meaning of article 14 of the articles for the government of the navy (Rev. St. U. S. art. 14, § 1024), and therefore not liable to be tried by court-martial upon the charges preferred against him. This point has been determined adversely to the prisoner by the United States district court for the Eastern district of New York. — U. S. v. Bogart [Case No. 14.0101. — -and by the circuit court of the United States for tlie Nintli circuit, — Bogart's Case [Id. 1,596]. Under tlie statutes providing for tlie organization of the navy, and tlie regulations for the government of the navy adopted by the secretary of the navy, paymasters’ clerks form a part of the pay corps of the navy. They receive their appointment from the secretary of the navy or the commander of the vessel on which they serve. They are required to accept their appointment by letter, binding themselves to be subject to the laws and regulations for Tlie government of the navy, and to the discipline of the vessel, and to serve until regularly discharged. Their compensation is fixed by the statutes relating to the navy, and is paid from the naval appropriations, and their names are entered upon the navy muster rolls and pay rolls. Their duties are performed on board vessels of war or at naval stations, and relate to the administration of the funds of the navy department. In case of disability they are entitled to pensions as naval officers. In all essential particulars they belong to, and form a part of, the navy of the country, and must be regarded as subject to its rules and regulations.

For these reasons, which are the same given for the decisions of the court in the cases above cited, the conclusion upon the first point is that the prisoner was in the naval service of the United States within the meaning of article 14, and was liable to be tried, convicted, and sentenced by a naval general court-martial. Rev. St. U. S. §§ 1376-1389, 1556, 4695.

The second reason assigned is that Rear-Admiral Nichols had no authority to send back the proceedings to the court-martial for a revision of sentence, and consequently the second sentence was illegal. It was said by Attorney-General Legare in 1842. in an opinion reported in 4 Op. Atty. Gen. 19, that, “in military courts-martial, the power of the commander by whom they have been convened, to direct them, in the event of disapproval, to revise their sentence and reconsider the proceedings, has never been doubted; and is rested solely upon the ground that the sentences of such courts are not to be put in execution until approved by that commander;” and he decided in that ease that the president might order a naval court-martial to reconsider its judgment whenever, according to the statute, his previous sanction is necessary for the execution of the judgment The same question was again under consideration by Attorney General Cushing in 1S53, in the case of Captain Voorhees, and in an elaborate and exhaustive opinion, reported in 6 Op. Atty. Gen. 201, the learned attorney-general shows beyond all question that by the well-settled principles of the military law, it is within the power of the authority appointing a court-martial, both in the army and navy, before the court has actually been dissolved, to order the case back for revision of sentence. In 1liat opinion he says: “It is laid down as a thing not open to controversy, in all the books of military law, that the superior authority may order a court martial to reassemble to revise its proceedings and sentence;” and “the power of ordering a case back to court martial for revision, must be conceded as indubitably existing, both as to the army and the navy of the United States;" and his opinion is fully sustained by the numerous authorities upon military law which he cites. He shows that a revisa! by court-martial is not a case of new trial at the instance of the government, and until the sentence of the court is approved or disapproved, the ease still remains sub judiee. He clearly proves that the general rules of the military law have been adopted in this country, and are applicable to the proceedings of courts-martial both in the army and navy. Indeed, it was conceded at the hearing by the learned counsel for the prisoner that the practice now complained of has prevailed both in the army and navy since the foundation of the government.

By the act of July 14. 1S62, c. 164, § 5 ([12 Stat. 565]; Rev. St. U. S. § 1547), it is provided that “tlie orders, regulations, and instructions heretofore issued by the secretary of the navy be. and they are hereby, recognized as the regulations of the navy department, subject, however, to such alterations as the secretary of navy may adopt, with tlie approbation of the president of the United States.” Under the authority of this act. certain “Orders, Regulations and Instructions for the Administration of Law and Justice in the United States Navy,” were issued by the secretary of the navy in April, 1870, with the approval of the president, and have ever since been in force. They contain the following provisions:

“See. 261. No sentence of a general court-martial can be carried into execution until after the whole of the proceedings have been laid before the officer who appointed the court, or, according to the circumstances of the case, shall have been submitted, through the secretary of the navy, to tlie president of the United States for his confirmation and orders.”

“Sec. 262. The authority who ordered the court is competent to direct it to reconsider its proceedings and sentence, for the purpose of correcting any mistake which may have been committed.”

“Sec. 263. It is not in the power of the revising authority to compel a court to change its sentence, when, upon being recommended by him, they have refused to modify it, nor directly or indirectly to enlarge the measure of punishment imposed by sentence of court-martial.”

“Sec. 264. The proceedings must be sent back for revision before the court shall have been dissolved.”

Tlie fifty-third article for the government of the navy is as follows: “Art. 53. No sentence of a court-martial, extending to tlie loss of life, or to the dismissal of a commissioned or warrant officer, shall be carried into execution until confirmed by the president. All other sentences of a general court-martial may be carried into execution on confirmation of the commander of the fleet, or officer ordering the court.”

[NOTE. This matter has since been heard by the supreme court of the United States, and the decision of Judge Nelson was sustained.]

A paymaster's clerk is neither a commissioned nor a warrant officer, but holds his po-' sition by appointmeut. The first sentence •was disapproved by the commander of the fleet, and the proceedings were returned' to the court-martial before it was dissolved. The proceedings of the court-martial and the action of Rear-Admiral Nichols seem to have been in exact accordance with the statutes and regulations of the navy, and to be fully justified by the principles of military law, as well as by the well-settled usage of the army and navy departments of the government.

An order is to be entered discharging the writ and remanding the prisoner to the custody of Captain S. L. Breese. Ordered accordingly.