Stanton Carter v. McClaughry
183 U.S. 365 (1902)

Annotate this Case

U.S. Supreme Court

Stanton Carter v. McClaughry, 183 U.S. 365 (1902)

Stanton Carter v. McClaughry

No. 251

Argued December 3-4, 1901

Decided January 6, 1902

183 U.S. 365

Syllabus

The rule reiterated that civil tribunals will not revise the proceedings of courts martial except for the purpose of ascertaining whether they had jurisdiction of the person and of the subject matter, and whether, though having such jurisdiction, they have exceeded their powers in the sentences pronounced.

Where the punishment on conviction of any military offense is left to the discretion of the court-martial, the limit of punishment, in time of peace, prescribed by the President, applies to the punishment of enlisted men only.

Where the jurisdiction of the military court has attached in respect of an officer of the army, this includes not only the power to hear and determine the case, but the power to execute and enforce the sentence.

Where the sentence is rendered on findings of guilty of several charges with specifications thereunder, and the President, as the reviewing authority, has disapproved of the findings of guilty of some of the specifications, but approved the findings of guilty of a specification or specifications under each of the charges, and of the charges, and the President does not think proper to remand the case to the court-martial for revision, or to mitigate the sentence, or to pardon the accused, but approves the sentence, the judgment so rendered cannot be disturbed on the ground that the disapproval of some of the specifications vitiated the sentence.

Page 183 U. S. 366

In this case, Charge I was "conspiring to defraud the United States in violation of the 60th article of war." Charge II was "causing false and fraudulent claims to be made against the United States in violation of the 60th article of war." These are separate and distinct offenses, and the military court was empowered to punish the accused as to one by fine and as to the other by imprisonment.

Charge III was "conduct unbecoming an officer and a gentleman, in violation of the 61st article of war." This is not the same offense as the offenses charged under the 60th article of war. But, in view of articles 97 and 100, conviction of Charges I and II involves conviction under article 61, and the officer may be dismissed on conviction under either article.

Charge IV was "Embezzlement, as defined in section 5488 of the Revised Statutes, in violation of the 62d article of war." Held: (a) that the specified crime was not mentioned in the preceding articles. That the offenses of which the accused was convicted under the 60th article were distinct from the acts prohibited by section 5488. (b) That the crime alleged in this charge was not covered by subdivision 9 of article 60, because the embezzlement charged was not of money "furnished or intended for the military service." (c) Nor was the money applied to a purpose prescribed by law, and it was for the court-martial to determine whether the crime charged was "to the prejudice of good order and military discipline."

This was a petition for the writ of habeas corpus filed on behalf of Oberlin M. Carter in the Circuit Court of the United States for the District of Kansas, October 17, 1900, on which the writ was issued returnable October 26.

The petition alleged that Carter was imprisoned and restrained of his liberty by the warden of the United States prison at Fort Leavenworth, Kansas, by virtue of a sentence imposed upon him by a general court-martial of the United States, approved by the Secretary of War, and approved and confirmed by the President of the United States on the 29th day of September, 1899.

That the warrant under which the warden detained petitioner was an order from the headquarters of the army -- that is to say, General Orders No. 172, dated September 29, 1899, and set forth at length.

From this it appeared that Captain Oberlin M. Carter, Corps of Engineers, United States Army, was arraigned and tried before a general court-martial on four charges with specifications under each.

Page 183 U. S. 367

To the first specification of Charge I, the first, second, third, fourth, and fifth specifications of Charge II; the first, thirteenth, fourteenth, fifteenth, sixteenth, seventeenth, eighteenth, nineteenth, twentieth, and twenty-first specifications of Charge III, and the second specification of Charge IV, he pleaded the statute of limitations, the 103d article of war, and the plea was sustained by the court. To the charges and the other specifications he pleaded not guilty, and was found not guilty on the eighth, tenth, twelfth, and twenty-third specifications under Charge III.

Omitting the above specifications and abbreviating those disapproved by the President, as stated hereafter, the charges and specifications were as follows:

Charge I -- "Conspiring to defraud the United States, in violation of the 60th article of war."

Specification II --

"In that Captain Oberlin M. Carter, Corps of Engineers, United States Army, devising and intending to defraud the United States, and to aid the Atlantic Contracting Company, a corporation, and John F. Gaynor, William T. Gaynor, and Edward H. Gaynor, and Anson M. Bangs, and divers other persons, all of whom were likewise with him, the said Carter, devising and intending to defraud the United States, did, with the corporation and persons named, unlawfully combine and conspire to defraud the United States of divers large sums of money by aiding the said The Atlantic Contracting Company to obtain the allowance and payment of certain false and fraudulent claims hereinafter described, and in pursuance of the said conspiracy the said Oberlin M. Carter, in the months of June, July, and August, September, and October, 1896, being an officer of the United States in charge of the river and harbor district usually called the Savannah District, and of the improvement by the United States of rivers and harbors in said district, did, with the knowledge and consent of the said other parties named, so advertise for proposals for contracts for certain works of improvement in the harbor of Savannah, Georgia, in said district, and so manage and conduct said advertising, and the matter of giving out information in regard to the contract to be let, and the matter of receiving proposals and awarding

Page 183 U. S. 368

the contract, as to enable the said The Atlantic Contracting Company to secure the contract for said work, and to have the same entered into by the United States with it October 8, 1896, and in further pursuance of the said conspiracy the said The Atlantic Contracting Company afterwards, to-wit, from about the 8th day of October, 1896, to July 31, 1897, did furnish and put into said work certain mattresses, stone, and other material which were different in kind and character from the mattresses, stone, and other material contracted for in said contract, and very much less costly to the said The Atlantic Contracting Company, as well as of less value to the United States, which said mattresses, stone, and other material so furnished and put into the work the said Captain Carter, in further pursuance of said conspiracy, did receive and accept, and cause to be received and accepted, for the United States, as and for the mattresses, stone, and other material contracted for, and did, on or about July 6, 1897, cause to be paid, out of the moneys of the United States, $230,749.90 to the said The Atlantic Contracting Company, on account of the said furnishing and delivery of the same, and as if the said mattresses, stone, and other material had been such as were stipulated for in the contract, and at the same rate, cost, and price as if they had been."

"And in further pursuance of the said conspiracy, the said Captain Carter, about June, July, August, September, and October, 1896, did advertise for proposals for a contract for improving Cumberland Sound, Georgia, in said river and harbor district, and so manage and conduct the matter of such advertising, and the matter of giving out information in regard to the contract to be let, and the matter of receiving proposals and awarding the contract, as to enable the said The Atlantic Contracting Company to secure the contract for said work and to have the same entered into by the United States with it October 8, 1896, and in further pursuance of the said conspiracy, the said The Atlantic Contracting Company, from about the 8th day of October, 1896, to the 31st day of July, 1897, did furnish and put into said work certain mattresses, stone, and other materials which were different in kind and character from the mattresses, stone, and other materials contracted for in said

Page 183 U. S. 369

contract, and very much less costly to the said The Atlantic Contracting Company, as well as of less value to the United States; which said mattresses, stone, and other material so furnished and put into the work the said Captain Carter, in further pursuance of said conspiracy, did receive and accept, and cause to be received and accepted, for the United States, as and for the mattresses, stone, and other material contracted for, and did, on or about July 6, 1897, cause to be paid, out of the moneys of the United States, $345,000.00 to the said The Atlantic Contracting Company, on account of said furnishing and delivery of the same, and as if the said mattresses, stone, and other material had been such as were stipulated for in the contract, and at the same rate, cost, and price as if they had been."

"This on the 6th day of June, 1896, and thereafter to the 1st day of August, 1897."

Charge II -- "Causing false and fraudulent claims to be made against the United States, in violation of the 60th article of war."

Specification VI --

"In that Captain Oberlin M. Carter, Corps of Engineers, United States Army, being at the time the officer in local charge of river and harbor improvements in the Savannah River and Harbor District, did cause to be made certain false and fraudulent claims against the United States and in favor of the Atlantic Contracting Company, a corporation, knowing the same to be false and fraudulent, to-wit: the claim represented by the following voucher submitted by the said Captain Carter with his accounts, and marked 'Appropriation for improving harbor at Savannah, Georgia:'"

"Voucher No. 8, $230,749.90, July, 1897, and the claim represented by the following voucher submitted by the said Captain Carter with his accounts, and marked 'Appropriation for improving Cumberland Sound, Georgia and Florida:'"

"Voucher No. 9, $345,000.00, July, 1897, which said false and fraudulent claims the said Captain Carter caused to be made by knowingly permitting the said Atlantic Contracting Company, which had previously entered into contracts, dated October 8, 1896, to furnish the United States certain mattresses,

Page 183 U. S. 370

stone, and other material, of specified kinds and qualities, for constructing works in said river and harbor district, to furnish and put into said works mattresses, stone, and other material different from, inferior to, cheaper, and of less value to the United States than those contracted for, and by receiving and accepting and paying for the same as of the kinds and qualities contracted for, and by falsely certifying to the correctness of the said vouchers, well knowing that the mattresses, stone, and other material charged for in said vouchers as having been furnished had not in fact been furnished, each of the said claims having been made in or about the month named in the above description of the voucher relating to it."

Specification VII -- In that the accused caused to be entered on a government payroll the names of sundry persons as laborers, and caused to be paid to them certain sums for services as laborers, whereas none of such persons had rendered services as laborers, and the accused knew such claims were false and fraudulent.

Specification VIII -- For fraudulently allowing an account of $121.60 of the Atlantic Contracting Company against the United States, for piling in repairing the Garden Bank training wall.

Specification IX -- For fraudulently allowing an account of $384 to the Atlantic Contracting Company for pile work.

Specification X -- For fraudulently allowing an amount of $108.80 to the Atlantic Contracting Company for pile dams.

Charge III -- "Conduct unbecoming an officer and a gentleman, in violation of the 61st article of war."

Specification II --

"In that Captain Oberlin M. Carter, Corps of Engineers, United States Army, being the officer in local charge for the United States of river and harbor improvements in the Savannah River and Harbor District, did willfully and knowingly cause the following amounts to be paid out of the moneys of the United States subject to his order and control as officer in charge of said improvements, to the Atlantic Contracting Company, a corporation; the accounts on which the same were paid being false, and the amounts paid not being due or owing from the United States to the said company, or to anyone,

Page 183 U. S. 371

and he, the said Captain Carter, well knowing this to be the case; the said accounts and amounts paid and the payments being those designated by the following voucher (and the entries therein and indorsements thereon) submitted by the said Captain Carter with his accounts, and marked 'Appropriation for improving harbor at Savannah, Georgia;'"

"Voucher No. 8, $230,749.90, July, 1897, and the one indicated and designated by the following voucher (and the entries therein and indorsements thereon) submitted by the said Captain Carter with his accounts and, marked 'Appropriation for improving Cumberland Sound, Georgia and Florida;'"

"Voucher No. 9, $345,000, July, 1897; each of the said payments having been caused to be made on or about July 6, 1897, by the said Captain Carter drawing and delivering a check as such officer in charge of river and harbor improvements, by which the payment was ordered and directed to be made out of moneys of the United States under his control as such officer."

Specification III -- For making a false statement to the chief of engineers as to new soundings for work in Savannah harbor, with intent to deceive.

Specification IV -- For falsely entering on the payroll the names of certain persons as laborers to an amount of $29.50.

Specification V -- For falsely certifying as correct an account of the Atlantic Contracting Company for $121.60.

Specification VI -- For falsely certifying as correct an account of the Atlantic Contracting Company for $384.

Specification VII -- For falsely certifying as correct an account of the Atlantic Contracting Company for $108.80.

Specification IX -- For indorsing a certain false statement on a letter from the chief of engineers as to rentals on property proposed to be acquired by the United States at Savannah.

Specification XI -- For failing to account for the sum of $132.10, money of the United States, received by the accused from Alfred Hirt.

Specification XXII -- For making false reports as to his absence from his station.

Charge IV -- "Embezzlement, as defined in section 5488, Revised Statutes of the United States, in violation of the 62d article of war."

Page 183 U. S. 372

Specification I --

"In that Captain Oberlin M. Carter, Corps of Engineers, United States, Army, being the officer in charge for the United States of river and harbor improvements in the Savannah River and Harbor District, and, as such officer, in charge of said improvements, being a disbursing officer of the United States, and having entrusted to him large amounts of public money of the United States, did willfully and knowingly apply for a purpose not authorized by law large sums of the said moneys so entrusted to him, by willfully and knowingly causing the amounts hereinafter named to be paid out of the said moneys which were subject to his order and control of such officer in charge of said improvements; the accounts on which the same were being paid being false, the amounts paid not being due or owing from the United States to the parties paid, or to any one, and he, the said Captain Carter, well knowing this to be the case; the said accounts, the amounts paid, and the payments being those designated by the following voucher (and the entries therein and the indorsements thereon) submitted by the said Captain Carter with his accounts, and marked 'Appropriation for improving harbor at Savannah, Georgia:'"

"Voucher No. 8 ($230,749.90), July, 1897, and the one indicated and designated by the following voucher (and the entries therein and indorsements thereon) submitted by the said Captain Carter with his accounts, and marked 'Appropriation for improving Cumberland Sound, Georgia and Florida:'"

"Voucher No. 9 ($345,000.00), July, 1897; each of the said payments having been caused to be made on or about July 6, 1897, by the said Captain Carter drawing and delivering a check as such officer in charge of river and harbor improvements, by which the payment was ordered and directed to be made out of moneys of the United States under his control as such officer."

The court-martial found the accused guilty of the second specification under Charge I.,

"except the words 'and other material,' and interpolating the word 'and' between the words 'mattresses' and 'stone' wherever those words occur in the specification, of the excepted words not guilty, and of the interpolated word guilty, and guilty of the charge; guilty of the

Page 183 U. S. 373

sixth specification under Charge II.,"

"except of the words 'and other material' where they occur the second and third time, and interpolating the word 'and' between the words 'mattresses' and 'stone' where they occur the second and third time; of the excepted words not guilty; of the interpolated word guilty;"

"guilty of the seventh, eighth, ninth, and tenth specifications, and guilty of the charge; guilty of the second, third, fourth, sixth, seventh, ninth, eleventh, and twenty-second specifications under Charge III of the fifth specification, "except of the words the articles have been,' and of the excepted words not guilty," and not guilty of the eighth, tenth, twelfth, and twenty-third specifications, and guilty of the charge; guilty of the 1st specification under Charge IV, and guilty of the charge."

The general order then set forth the sentence and subsequent action as follows:

"Sentence"

"And the court does therefore sentence the accused, Captain Oberlin M. Carter, Corps of Engineers, United States Army,"

"to be dismissed from the service of the United States, to suffer a fine of $5,000 to be confined at hard labor at such place as the proper authority may direct for five years, and the crime, punishment, name, and place of abode of the accused to be published in the newspapers in and about the station and in the state from which the accused came, or where he usually resides."

"The record of the proceedings of the general court-martial in the foregoing case of Captain Oberlin M. Carter, Corps of Engineers, having been submitted to the President, the following are his orders thereon:"

" The findings of the court-martial in the matter of the foregoing proceedings against Captain Oberlin M. Carter, Corps of Engineers, U.S. Army, are hereby approved as to all except the following:"

" Charge 2. Specifications seven, eight, nine, and ten."

" Charge 3. Specifications three, four, five, six, seven, nine, eleven, and twenty-two, which are disapproved. And the sentence

Page 183 U. S. 374

imposed by the court-martial upon the defendant Oberlin M. Carter is hereby approved."

"Elihu Root, Secretary of War"

"Executive Mansion"

"Washington, D.C. September 29, 1899"

"Approved and confirmed."

"William McKinley"

"By direction of the Secretary of War Captain Oberlin M. Carter, Corps of Engineers, ceases to be an officer of the army from this date, and the United States penitentiary, Fort Leavenworth, Kansas, is designated as the place for his confinement, where he will be sent by the commanding general, Department of the East, under proper guard."

"By command of Major General Miles:"

"H. C. Corbin, Adjutant General."

The petition averred that said Carter, in pursuance of the sentence, had been dismissed from the Army of the United States, and the order of dismissal served upon him; that the crime, punishment, name, and place of abode of said Carter had been published in the newspapers in and about his station and in and about the state whence he came and where he usually resided, and that said Carter had paid to the United States the fine of $5,000 imposed by the sentence. And that said Carter,

"having been cashiered the army, having suffered degradation, and having paid the fine imposed, as above set forth, his imprisonment and detention are contrary to law, are in violation of the Constitution of the United States, and are illegal and without warrant of law, for the following reasons, that is to say:"

First. That there was no evidence delivered before the court-martial which tended to show that any crime whatever had been committed by said Carter, but, on the contrary, all the evidence taken together affirmatively showed that Carter was wholly innocent of any wrongdoing; "and that in imposing the sentence above set out said court-martial acted beyond its jurisdiction, and said sentence was and is wholly void." Petitioner stated that he had no copy of the evidence, but that he

Page 183 U. S. 375

attached a copy of an abstract of all the evidence adduced before the court-martial.

Second. That the finding of said Carter guilty of Charge IV and the specification thereunder, and the imposing of sentence on him as for a violation of the 62d article of war, were and each of them was wholly illegal and void, for that: (a) it was shown by the evidence, and appeared from the charges and specifications, that the two sums of money alleged to have been paid out by Carter "for a purpose not authorized by law" were paid out by him under and in accordance with the specifications of two certain contracts for the improvement of Savannah harbor and Cumberland Sound, which contracts were entered into pursuant to the act of Congress of June 3, 1896; (b) it appeared from the specification that the acts described therein were not in violation of the 62d article of war, and were not cognizable by a court-martial under that article, but if justiciable at all by the court-martial, were justiciable under the 60th article of war.

Third. That the imprisonment and detention were illegal and contrary to article 102 prohibiting a second trial for the same offense, and contrary to the Fifth Amendment to the Constitution of the United States in this: (a) that it appeared from the charges and specifications, and also from the evidence, that the payment of the two checks drawn by Carter, and described in each of the specifications under which he was convicted, were the only basis of each of the four charges, and that the single act of drawing the two checks had been carved up into four distinct and different crimes, and a punishment assessed on each; (b) that the sentence was beyond the powers of the court-martial and void, for that, under the 60th article of war, the court-martial was authorized to inflict the punishment of a fine or imprisonment, or such other punishment as it might adjudge; (c) that under the 61st article of war, the violation of which was laid in Charge III, the court-martial had jurisdiction to inflict the judgment of dismissal from the army only; (d) that the facts set out in the specifications under Charges I, II, and IV, respectively, brought the offense therein described under the 60th article of war, under which the court-martial

Page 183 U. S. 376

had jurisdiction only to inflict a fine or an imprisonment or some other punishment, in the alternative, and not cumulatively.

Fourth. That the punishment of fine and imprisonment were and each of them was beyond the power of the court-martial to inflict, because the same were imposed after Carter had ceased to be an officer of the Army of the United States, and after he had ceased to be subject to the jurisdiction of the court-martial.

Fifth. That the punishment of imprisonment was beyond the powers of the court-martial and void in this: that under and by virtue of an Act of Congress approved September 27, 1890, the President, by an order dated March 20, 1895, fixed the maximum punishment for a violation, by an enlisted man in the Army of the United States, of the 60th article of war, and for the violation by such person of the 62d article of war, by embezzlement of more than one hundred dollars at a term of four years' confinement at hard labor, under each article, and that thereafter, on October 31, 1895 (prior to these proceedings), the President, in accordance with the act of Congress, prescribed that said maximum limit should extend to all such violations, whether by officers or enlisted men of the army.

Sixth. That the sentence was wholly void in this --

"That said court-martial found the said Captain Carter guilty of charge one and of specification two thereunder; of charge two and specifications six, seven, eight, nine, and ten thereunder; of charge three and specifications two, three, four, five, six, seven, nine, eleven, and twenty-two thereunder, and of charge four and specification one thereunder, and thereupon sentenced the said Carter to be punished as hereinabove set forth, but the President of the United States disapproved the findings of said court-martial as to specifications seven, eight, nine, and ten, under charge two, and specifications three, four, five, six, seven, nine, eleven, and twenty-two under charge three, and approved the said sentence as originally fixed by the said court; the said several specifications so approved and the said several specifications so disapproved charging several and distinct offenses, growing out of several distinct and disconnected

Page 183 U. S. 377

transactions, said several offenses charged not being of the same class of crimes."

"That the sentence thus confirmed by the said President of the United States was not the sentence, of said court-martial, and was not in mitigations or commutation of such sentence, but was for the offenses of which said Carter was finally determined to be guilty, in excess of the sentence imposed by said court-martial."

The petition further alleged that October 2, 1899, said Carter, by Abram J. Rose, applied to the United States Circuit Court for the Southern District of New York for a writ of habeas corpus, which writ was on October 20, 1899, dismissed; that, on January 24, 1900, the decision of the circuit court was affirmed by the United States Circuit Court of Appeals for the Second Circuit; that thereafter the petitioner last named prosecuted a writ of error to the circuit court and a certiorari out of the Supreme Court of the United States, but the Supreme Court dismissed the appeal and writ of error. Copies of the opinions in each of these courts were attached. Petitioner further averred that this application was made on the same evidence as in the application to the Circuit Court for the Southern District of New York, to-wit, the evidence adduced before the court-martial.

By amendment a further allegation was added to the petition to the effect that, on December 9, 1899, said Carter and Benjamin D. Green and others were indicted in the United States Circuit Court for the Southern District of Georgia for a conspiracy to defraud the United States, a copy of which indictment was attached;

"that said indictment was based on the same facts as set out in the charges and specifications, for the conviction of which by said court-martial said Carter is now undergoing imprisonment -- that is to say, Charge I, specification two, Charge II, specification six, Charge III, specification two, and Charge IV, specification one, as set out in the petition filed herein -- and that said indictment was found after the Circuit Court of the United States for the Southern District of New York had denied the application for a writ of habeas corpus on October 20, 1899. "

Page 183 U. S. 378

The respondent, the warden of the United States penitentiary at Fort Leavenworth, Kansas, returned to the writ that he had Oberlin M. Carter in custody, as such warden, and detained him by direction of the Secretary of War, the said Carter being under sentence of a general court-martial, sentenced to be imprisoned at said penitentiary for five years, and that Carter was now in custody as aforesaid, undergoing said sentence of imprisonment; that the warden was acting in the capacity of custodian of said Carter, in virtue of General Orders No. 172 of September 29, 1899, a duly authenticated copy of which was filed as part of the return, and the respondent contended that said Carter had been lawfully convicted and sentenced by the said general court-martial, which had jurisdiction of the person of said Carter, and of the various offenses for which he was tried.

Respondent further set forth the proceedings by habeas corpus in the Southern District of New York, during the pendency of which the said Carter paid the fine imposed, and averred that, on hearing the circuit court dismissed the writ, and Carter was remanded to custody, In re Carter, 97 F. 496; that thereafter the cause was carried to the Circuit Court of Appeals for the Second Circuit, and that court affirmed the final order of the circuit court. 99 F. 948. That, on February 5, 1900, a petition for certiorari was submitted to the Supreme Court of the United States, which on February 26, 1900, was denied. Carter v. Roberts,176 U. S. 684. That, on the same day the application for certiorari was denied, an appeal was taken to the Supreme Court, and a writ of error sued out, to review the order of the circuit court in dismissing the habeas corpus and remanding the said Carter, and that thereafter the Supreme Court, on April 23, 1900, dismissed said appeal and writ of error for want of jurisdiction. Carter v. Roberts,177 U. S. 496. That on the mandate issuing from the Supreme Court April 24, 1900, to the circuit court, the circuit court, on April 25, 1900, entered judgment, and remanded Carter to the custody from which he was produced, for the purpose of having the sentence executed. Duly authenticated transcripts of these various proceedings and copies of accompanying briefs were made parts of the return.

Page 183 U. S. 379

That, in accordance with the sentence, Carter was received at the penitentiary on the 27th day of April, and had been there until the present date, undergoing the same.

Respondent objected in conclusion to the admission by the court of the abstract of the evidence alleged to have been taken before the court-martial and made part of petitioner's petition, because the record of the whole proceedings of a court-martial is required by law to be reduced to writing, and deposited in the office of the Judge Advocate of the Army, and this record or a copy thereof duly authenticated is the best evidence; and, even if produced, would be inadmissible for the purpose for which it was sought to be introduced, as the courts in habeas corpus proceedings cannot examine the evidence for the purpose of determining the guilt or innocence of the party convicted, and this case presented no exception justifying departure from this rule, as General Orders No. 172 afforded all the information necessary to dispose of the case.

The record of the circuit court shows that the matter came on to be heard on November 23, 1900, on petitioner's

"oral motion to discharge the said Oberlin M. Carter, based upon the averments of respondent's return, no evidence having been offered or considered by the court."

On December 10, 1900, it was ordered by the court

"that the writ of habeas corpus herein be discharged, and it is further ordered that the said Oberlin M. Carter be remanded to the custody of Robert W. McClaughry, warden of the United States penitentiary at Fort Leavenworth, Kansas."

The opinion of the court was delivered by Hook, J., in which Thayer, Circuit Judge, concurred. 105 F. 614.

This appeal was then prosecuted, and errors duly assigned. Errors were also specified in appellant's brief, in substance as follows:

1. That the finding of "guilty" under Charge IV and its specification was void, inasmuch as the specification was wrongly laid under article 62, because (a) the money was applied to a purpose prescribed by law; (b) and the crime charged was not "to the prejudice of good order and military discipline;" and inasmuch as the crime charged was "mentioned in the foregoing

Page 183 U. S. 380

articles of war," being covered by paragraphs 1, 4, and 9 of article 60.

2. The finding under article 62 being void, that the sentence is in violation of the Fifth Amendment of the Constitution because it was greater than could be imposed for any alleged crime taken singly, and there were only two separate crimes charged, viz., conspiracy and paying fraudulent claims, while there were three several penalties imposed, viz., dismissal, fine, and imprisonment. Dismissal and fine had been discharged, and the third, imprisonment, is illegal.

3. That the entire sentence is illegal and void because, the President having disapproved the conviction as to certain offenses, and having ordered the original sentence to stand, such sentence ceased to be the sentence of the court-martial.

4. The imprisonment is illegal because inflicted after Carter ceased to be an officer of the army.

5. The sentence of imprisonment is void because in excess of the maximum allowed by law.

6. The court-martial had no jurisdiction to try Carter, "because it stands admitted that no evidence whatever was adduced tending to show his guilt."

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