The sixty-second article of war does not vest, nor purport to
vest, exclusive jurisdiction in courts-martial, and civil courts
have concurrent jurisdiction over all offenses committed by a
military officer which may be punished under the provisions of that
article. The effect of § 3 of the Acts of March 3, 1825, c. 65, 4
Stat. 115; April 5, 1866, c. 24, 14 Stat. 13, carried forward in
5391, Rev.Stat., and July 7, 1898, c. 576, 30 Stat. 717, providing
that the punishment of offenses in places ceded by the state to the
United States not specially provided for by any law of the United
States shall be the same as that provided for by the law of the
state ceding the place where the offense was committed, is limited
to the criminal laws in force in the several states at the time of
the enactment of the legislation, and those statutes do not
delegate to such states authority to in any way change the criminal
law of the United States.
United States v.
Paul, 6 Pet. 141.
Jurisdiction of this Court under the act of 1891 of a direct
appeal from the court of appeals cannot be based on constitutional
points that are absolutely unfounded in substance, as in this
case.
Three indictments were returned against plaintiff in error by
the grand jury in the Southern District of New York. In the first
of said indictments, he was charged with the embezzlement
Page 216 U. S. 560
of certain personal property of the cadets at the United States
Military Academy, upon a government reservation, to-wit, the West
Point Military Reservation, in the Southern District of New York,
in violation of § 5391, Rev.Stat., as amended by the Act of July 7,
1898, and of §§ 528 and 531 of the New York Penal Code.
In the second indictment, he was charged with making and
presenting to an officer of the Army for approval false claims upon
the government of the United States for supplies furnished to the
cadet mess at West Point, in violation of § 5438, Rev.Stat., and in
the third indictment, he was charged with making and presenting to
an officer of the Army, for approval and for payment, a false claim
upon the United States War Department, and upon the treasurer of
the United States Military Academy in violation of § 5438,
Rev.Stat..
Demurrers to the indictments were overruled and they were then
consolidated. The first of said indictments contained six counts,
in three of which plaintiff in error was charged with grand larceny
in the second degree, under the New York Penal Code, and in the
other three he was charged with embezzlement of the same funds, in
violation of the New York Penal Code; but the first three of said
counts were
nolle prossed. The defendant thereupon pleaded
guilty to all three of the indictments; but before judgment was
pronounced, he moved in arrest of judgment, the grounds of his
motion being as follows:
"1. Because the said fourth, fifth, and sixth counts of the
indictment against the said defendant for grand larceny under
section 2, chapter 576, Act of July 7, 1898, to and of which the
defendant pleaded and was found guilty, do not, nor does any one of
the said counts, charge a criminal offense under the laws of the
United States."
"2. Because the said section 2, chapter 576, of an Act of
Congress approved July 7, 1898, entitled, 'An Act to Protect the
Harbor Defenses and Fortifications Constructed or Used by the
United States from Malicious Injury, and for Other Purposes,' is
unconstitutional and void. "
Page 216 U. S. 561
"3. Because, by the Constitution and the laws of the United
States, this Court here has no jurisdiction of the offense alleged
to have been committed by this defendant in said fourth, fifth, and
sixth counts of the said indictments, because he says the said
section 2, chapter 576, of the said Act of Congress approved July
7, 1898, confers upon this Court here no jurisdiction of this
cause, nor any legal power to hear, try, and determine the same,
inasmuch as the punishment for the offense alleged in said
indictment, and in each and every count thereof, when committed by
the treasurer of the United States Military Academy, an officer of
the Army of the United States, is provided for by § 1342, Rev.Stat.
of the United States, and inasmuch as, by the said Constitution and
laws, exclusive jurisdiction over said offense, when committed by a
person subject to military jurisdiction, is vested in the properly
constituted and authorized courts-martial of the United
States."
"4. Because the facts alleged in said counts under § 5438,
Rev.Stat. of the United States, do not, as alleged in said counts,
or in any one of them, charge a criminal offense against the United
States."
This motion was overruled, and defendant was sentenced to serve
a term of imprisonment of two and one-half years in the United
States penitentiary at Atlanta; and, errors being assigned which
raised the questions presented in the motion in arrest of judgment,
the case was removed to this Court by writ of error.
The statutes under which said indictments were found are as
follows:
1. Section 2 of the Act of July 7, 1898, 30 Stat. 717, c.
576:
"That when any offense is committed in any place, jurisdiction
over which has been retained by the United States or ceded to it by
a state, or which has been purchased with the consent of a state
for the erection of a fort, magazine, arsenal, dockyard, or other
needful building or structure, the punishment for which offense is
not provided for by any law of the
Page 216 U. S. 562
United States, the person committing such offense shall, upon
conviction, in a circuit or district court of the United States for
the district in which the offense was committed, be liable to and
receive the same punishment as the laws of the state in which such
place is situated now provide for the like offense when committed
within the jurisdiction of such state, and the said courts are
hereby vested with jurisdiction for such purpose, and no subsequent
repeal of any such state law shall affect any such
prosecution."
2. Sections 528 and 531 of the Penal Code of New York:
"SEC. 528. A person who, with the intent to deprive or defraud
the true owner of his property, or of the use and benefit thereof,
or to appropriate the same to the use of the taker, or of any other
person --"
"1. Takes from the possession of the true owner, or of any other
person; or obtains from such possession by color or aid of
fraudulent or false representation or pretense, or of any false
token or writing, or secretes, withholds, or appropriates to his
own use, or that of any person other than the true owner, any
money, personal property, thing in action, evidence of debt or
contract, or article of value of any kind, or,"
"2. Having in his possession, custody, or control, as a bailee,
servant, attorney, agent, clerk, trustee, or officer of any person,
association, or corporation, or as a public officer, or as a person
authorized by agreement or by competent authority, to hold or take
such possession, custody, or control, any money, property, evidence
of debt or contract, article of value of any nature, or thing in
action or possession, appropriates the same to his own use, or that
of any other person other than the true owner or person entitled to
the benefit thereof, steals such property, and is guilty of
larceny."
"
* * * *"
"SEC. 531. A person is guilty of grand larceny in the second
degree, who, under circumstances not amounting to grand larceny in
the first degree, in any manner specified in this article, steals
or unlawfully obtains or appropriates: "
Page 216 U. S. 563
"1. Property of the value of more than $25, but not exceeding
$500, in any manner whatever, or"
"2. Property of any value, by taking the same from the person of
another, or"
"3. A record of a court or officer, or a writing, instrument, or
record kept, filed, or deposited according to law, with, or in
keeping of, any public office or officer."
3. Section 5438, Rev.Stat., so far as applicable to these
indictments:
"Every person who makes or causes to be made, or presents or
causes to be presented, for payment or approval, to or by any
person or officer in the civil, military, or naval service of the
United States, any claim upon or against the government of the
United States, or any department or officer thereof, knowing such
claim to be false, fictitious, or fraudulent, or who, for the
purpose of obtaining or aiding to obtain the payment or approval of
such claim, makes, uses, or causes to be made or used, any false
bill, receipt, voucher, roll, account, claim, certificate,
affidavit, or deposition, knowing the same to contain any
fraudulent or fictitious statement or entry . . . every person so
offending in any of the matters set forth in this section shall be
imprisoned at hard labor for not less than one nor more than five
years, or fined not less than one thousand nor more than five
thousand dollars."
Messrs. Holmes Conrad and S. T. Ansell for plaintiff in
error.
Page 216 U. S. 566
MR. CHIEF JUSTICE FULLER delivered the opinion of the Court.
This is a writ of error brought directly to this Court from the
Circuit Court of the United States for the Southern District of New
York, and the grounds upon which it is rested appear to be --
First. That under the sixty-second Article of War, § 1342,
Rev.Stat. (U.S.Comp.Stat. 1901, p. 957), which reads:
Page 216 U. S. 567
"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-martial, according to the nature and degree of the offense,
and punished at the discretion of such court,"
a court-martial has exclusive jurisdiction of the offenses
charged herein, inasmuch as plaintiff in error was an officer of
the United States Army; and
Second. That the case involved the construction or application
of the Constitution of the United States, and that the
constitutionality of a law of the United States was drawn in
question because, as is alleged, § 2 of the Act of July 7, 1898, is
unconstitutional, in that it undertakes to delegate the power of
legislation to the state legislatures.
1. It is well settled that the sixty-second Article of War does
not vest, nor purport to vest, exclusive jurisdiction in
courts-martial, and that civil courts have concurrent jurisdiction
over all offenses committed by a military officer which may be
punished by a court-martial under the provisions of that
article.
The thirtieth section of the Act of March 3, 1863, 12 Stat. 736,
c. 75, provided that, in time of war, insurrection, or rebellion,
certain offenses, including murder,
"shall be punishable by the sentence of a general court-martial
or military commission, when committed by persons who are in the
military service of the United States, and subject to the Articles
of War, and the punishments for such offenses shall never be less
than those inflicted by the laws of the state, territory, or
district in which they may have been committed."
In
Coleman v. Tennessee, 97 U. S.
509, it was held that this statute did not confer upon
courts-martial exclusive jurisdiction for the trial of the offenses
mentioned.
In
Grafton v. United States, 206 U.
S. 333,
206 U. S. 348,
it was expressly declared that the jurisdiction of courts-martial
is not
Page 216 U. S. 568
exclusive. Undoubtedly the general rule is that the jurisdiction
of civil courts is concurrent as to offenses triable before
courts-martial.
See opinion of Attorney General Cushing, 6
Op.Atty.Gen. 413, 419;
United States v. Clark, 31 F.
710.
And in the present case, the language of Article 62 and that of
§ 5438, Rev.Stat., and of § 2 of the Act of July 7, 1898,
demonstrates that it was the intention of Congress that offenses
committed in violation of the latter statute should be punished by
the civil courts, to say nothing of the fact that it was expressly
provided in § 2 and prior laws that conviction should be "in a
circuit or district court of the United States in which the offense
was committed."
There is absolutely nothing in the first proposition.
2. This is equally so of the intimated constitutional point.
By § 3 of the Act of March 3, 1825, 4 Stat. 115, c. 65, it was
provided:
"That, if any offense shall be committed in any of the places
aforesaid, the punishment of which offense is not specially
provided for by any law of the United States, such offense shall,
upon a conviction in any court of the United States having
cognizance thereof, be liable to, and receive, the same punishment
as the laws of the state in which such fort, dockyard, navy yard,
arsenal, armory, or magazine, or other place, ceded as aforesaid,
is situated provide for the like offense when committed within the
body of any county of such state."
In
United States v.
Paul, 6 Pet. 141,
31 U. S. 142,
coming here on certificate of division, it was held by this Court,
speaking by Chief Justice Marshall, that the effect of this section
was "limited to the laws of the several states in force at the time
of its enactment," and it followed that, by this act, Congress
adopted for the government of the designated places, under the
exclusive jurisdiction and control of the United States, the
criminal laws then existing in the several states within which such
places were situated insofar as said laws were not displaced by
specific laws enacted by Congress.
Section 2 of the Act of July 7, 1898, c. 576, 30 Stat. 717,
was
Page 216 U. S. 569
to the same effect, and moreover, by express language, Congress
adopted such punishment as "the laws of the state in which such
place is situated now provide for the like offense." There is
plainly no delegation to the states of authority in any way to
change the criminal laws applicable to places over which the United
States has jurisdiction.
We give below the legislation on the subject.
*
Page 216 U. S. 570
We are of opinion that the points attempted to be raised to
justify jurisdiction are so unfounded in substance as to utterly
fail of their purpose.
Writ of error dismissed for want of jurisdiction.
* On March 3, 1825, Congress passed c. 65, 4 Stat. 115:
"
Chap. LXV. An Act More Effectually to Provide for the
Punishment of"
"
Certain Crimes against the United States, and for Other
Purposes."
"SEC. 3. . . . That, if any offense shall be committed in any of
the places aforesaid, the punishment of which offense is not
specially provided for by any law of the United States, such
offense shall, upon a conviction in any court of the United States
having cognizance thereof, be liable to, and receive, the same
punishment as the laws of the state in which such fort, dockyard,
navy yard, arsenal, armory, or magazine, or other place, ceded as
aforesaid, is situated, provided for the like offense when
committed within the body of any county of such state."
On April 5, 1866, Congress enacted the following, c. 24, 14
Stat. 13:
"
Chap. XXIV. An Act More Effectually to Provide for
the"
"
Punishment of Certain Crimes against the United
States"
"SEC. 2. . . . That if any offense shall be committed in any
place which has been, or shall hereafter be, ceded to and under the
jurisdiction of the United States, which offense is not prohibited,
or the punishment thereof is not specially provided for, by any law
of the United States, such offense shall, upon conviction in any
court of the United States having cognizance thereof, be liable to,
and receive, the same punishment as the laws of the state in which
such place is or may be situated, now in force, provide for the
like offense when committed within the jurisdiction of such state,
and no subsequent repeal of any such state law shall affect any
prosecution for such offense in any of the courts of the United
States."
This act was carried forward as § 5391 of the Revised Statutes
as follows:
"SEC. 5391: If any offense be committed in any place which has
been or may hereafter be ceded to and under the jurisdiction of the
United States, which offense is not prohibited, or the punishment
thereof is not specially provided for, by any law of the United
States, such offense shall be liable to, and receive, the same
punishment as the laws of the state in which such place is
situated, now in force, provide for the like offense when committed
within the jurisdiction of such state, and no subsequent repeal of
any such state law shall affect any prosecution for such offense in
any court of the United States."
The Act of July 7, 1898, c. 576, 30 Stat. 717, upon the same
subject, reads:
"SEC. 2. That when any offense is committed in any place
jurisdiction over which has been retained by the United States or
ceded to it by a state, or which has been purchased with the
consent of a state for the erection of a fort, magazine, arsenal,
dockyard, or other needful building or structure, the punishment
for which offense is not provided for by any law of the United
States, the person committing such offense shall, upon conviction
in a circuit or district court of the United States for the
district in which the offense was committed, be liable to, and
receive, the same punishment as the laws of the state in which such
place is situated now provide for the like offense when committed
within the jurisdiction of such state, and the said courts are
hereby vested with jurisdiction for such purpose, and no subsequent
repeal of any such state law shall affect any such
prosecution."
This section appears in the Act of Congress approved March 4,
1909, modifying, amending, and revising the penal laws of the
United States, to become effective January 1, 1910, as follows:
"SEC. 289. Whoever, within the territorial limits of any state,
organized territory, or district, but within or upon any of the
places now existing or hereafter reserved or acquired, described in
section two hundred and seventy-two of this act, shall do or omit
the doing of any act or thing which is not made penal by any law of
Congress, but which, if committed or omitted within the
jurisdiction of the state, territory, or district in which such
place is situated, by the laws thereof now in force would be penal,
shall be deemed guilty of a like offense and be subject to a like
punishment, and every such state, territorial, or district law
shall, for the purposes of this section, continue in force,
notwithstanding any subsequent repeal or amendment thereof by any
such state, territory, or district."
