Thе 94th Article of War, relating to frauds against the government by persons subject to military law, after enumerating various of such offenses and indicating the punishment therefor, provides that “if any person, being guilty of any of the offenses aforesaid while in the military service of the United States, receives his discharge or is dismissed from the service, he shall continue to be liable to be arrested and held for trial and sentence by a court-martial in the same mаnner and to the same extent as if he had not received such discharge nor been dismissed.” 1 The Inquiry in this case is whether the provision was within the power of Congress to enact.
Briefly, the facts are that appellant was hоnorably discharged from the Army at Hamilton Field on April 7, 1947. Twenty-two days later, on April 29, while still in uniform, he was detained by San Francisco police on suspicion of being absent without leave. At that time, with his consent and that of his wife, a seаrch, participated in by a representative of the provost marshal, was made of his home with the resultant discovery of a parachute and many articles of Army clothing and other gear, valued in excess of $700, plus letters indicating that the property had either been illegally obtained by appellant while in the service or illegally retained upon his discharge. Under the provost marshal’s direction appellant was arrested and brought to Hamilton Field, where he was confined in the guardhouse for a considerable period pending investigation and trial. On July 11, 1947 charges were lodged against him under the 94th Article alleging that he had unlawfully applied to-his own use one parachute and had feloniously taken and carried away the other government property found in his home. Appellant thereupon petitioned the federal court for a writ of habeas corpus. An order to show cause issued by the court was heard July 21, 1947, at which time the petition was dismissed on stipulation and appellant was surrendered by the military to the civil authorities for possible grand jury action. Later he brought suit for damagеs for false arrest and imprisonment naming as defendants, among others, the appellees, namely General Hale, commanding general, Fourth Air Force, Colonel Goss, Hale’s subordinate in command at Hamilton Field, and Sergeant Dart, Army investigator acting under the provost marshal. Depositions were taken on appellant’s behalf and the parties entered into an agreed statement of facts in which the issues were narrowly defined. Bоth sides moved for summary judgment on the issue of liability, and the court gave judgment in favor of the defendants.
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Appellant does not deny that there was probable cause for his apprehension, assuming the validity of the Article. His clаim is that his status as a civilian deprived the Army of jurisdiction to arrest or try him. He contends that the provision giving to the military the authority to apprehend and court-martial persons who have been separated from the serviсe is violative of the Fifth and Sixth Amendments, particularly of the prohibition of the Fifth that no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, “except in cases arising in the land or naval forces * * The argument is that a case does not arise within the intendment of this exception until an appropriate proceeding has been instituted against an accusеd, hence military jurisdiction can not constitutionally attach if the charge is not framed and presented while the offender is still in the service. The reasoning is by analogy
to
the familiar definition given the word “case” as found in Article III, Sеction 2, of the Constitution, relating to the judicial power. Cf. Osborn v. Bank of the United States,
Article 94, inclusive of the provision here challenged, had its origin in the Act of March 2, 1863, 12 Stat. 696, and has been on the books continuously since. The Act had application both to the land and naval forces; and the cognate regulation for the government of the Navy is Article 14, now found in 34 U.S.C.A. § 1200. The constitutionality of the provision has been direсtly considered in but few cases, the first of which was In re Bogart, 3 Fed.Cas. 796, No. 1,596 decided in 1873 by the circuit court of the United States for the district of California, the opinion being written by Judge Sawyer. There the provision was attacked on the same grounds as here and its validity upheld. The court found no helpful analogy between the language of the exceptive clause of the Fifth Amendment and the question as to what constitutes a “case” for judicial cоgnizance as contemplated by the provision relating to the judicial power. It thought that by “cases arising in the land or naval forces” was meant proceedings issuing or springing from acts in violation of the laws regulating -the Army or Navy, committed by a person while a member of the service. The provision was similarly held valid in Ex parte Joly, D.C., 1922,
The frauds and thefts proscribed by Article 94 are covert offenses, nоrmally not brought to light until after the lapse of a considerable period of time. Congress apparently felt that the more elastic method provided by the Article for reaching this particular type of military offender was essential to the effective governance of the service. In United States ex rel. Hirshberg v. Cooke,
One other decision of significance will be noted. In Kahn v. Anderson,
Thus, directly or by inescapable inference, the legitimacy of this exertion of Congressional power would seem to have formidable support in authoritative precedent -as well as in the long passage of time. Certainly, or so it seems to us, it is now too late for any federal court short of the Supreme Court to do other than accept the provision as valid.
Appellant contends that even if the provision be held constitutional, his detention was unlawful because of failure on the part оf appellee to conform to the requirements of the 70th Article of War. 3 As earlier indicated, the court-martial charges were not lodged until 74 days after appellant’s arrest. He relies on a provision of thе Article stating that “When a person is held for trial by general court-martial the commanding officer will, within eight days after the accused is arrested or confined, if practicable, forward the charges to the officer exercising general court-martial jurisdiction and furnish the accused a copy of such charges. If the same be not practicable, he will report to superior authority the reasons for delay.” It is argued that these рrovisions are mandatory and that jurisdiction is lost if they are not complied with.
The 70th Article, however, must be read as a whole. It provides, among other things, that no charges will be referred for trial until a thorough and impartial investigation thereof shall have been made. The investigation is required to include inquiries as to the truth of the pro
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posed charges, the form of charges, and what disposition of the case should be made in the interest of justice and discipline. As pointed out by the trial court, the record in the case shows that extensive investigations at San Francisco, in Salt Lake City, and in Brooklyn, were necessary before the charges could be drawn. The court found that in the circumstances the delay was not excessive, and with this finding we are impelled to agree. Moreover, as we read the very recent decision in Humphrey v. Smith,
Affirmed. .
Notes
. 10 U.S.C.A. § 1566. Some alterations in verbiage were made in this provision by the Act of June 24, 1948, 62 Stat. 640.
. Judge Clancy’s holding appears to have been influenced to some extent by the views of Colonel Winthrop, “Military Law and Precedents” and by doubts expressed by Davis in his “Treatise on the Military Law.”
. 10 U.S.C.A. § 1542.