Kahn v. Anderson,
255 U.S. 1 (1921)

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U.S. Supreme Court

Kahn v. Anderson, 255 U.S. 1 (1921)

Kahn v. Anderson

No. 421

Argued December 7, 8, 1920

Decided January 31, 1921

255 U.S. 1


1. Under the 5th Article of War, which provides that a court-martial shall be composed of not less than five officers and must be composed of thirteen when so many may be convened without manifest injury to the service, the fixing of the number within those limits with reference to the condition of the service is an act of executive discretion not subject to judicial review. P. 255 U. S. 6.

2. Retired officers and officers of the United States Guards held competent under the 4th Article of War to sit on a court-martial as officers "in the military service of the United States," the former in virtue of their status as retired officers and because the Act of April 23, 1904, authorized their assignment by the Secretary of War, the latter by § 2 of the Selective Service Act of May 18, 1917, and regulations of the President thereunder. Id.

3. A person held as a military prisoner in punishment for a military offense of which he has been convicted is subject to military law and to trial by court-martial for offenses committed during such

Page 255 U. S. 2

imprisonment even if the prior sentence resulted in his discharge as a soldier. P. 255 U. S. 7.

4. This application of the military power is consistent with the Fifth Amendment. P. 255 U. S. 8.

5. Nor is the trial of such prisoners by court-martial at variance with the constitutional guarantees as to jury trial and presentment or indictment by grand jury. Id.

6. In providing that

"no person shall be tried by court-martial for murder or rape committed within the geographical limits of the states of the Union and the District of Columbia in time of peace,"

the 92d Article of the Articles of War (1916) contemplates a complete peace, officially proclaimed. P. 255 U. S. 9.

7. Such a peace was not brought about by the armistice and the cessation of hostilities in the War with Germany and Austria. Id.


The case is stated in the opinion.

Page 255 U. S. 5

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