1. The authority to convene a general court-martial may be
conferred upon the commander of a military camp by an order of the
President under the 8th Article of War, which provides that "the
commanding officer of any district or of any force or body of
troops" may appoint such courts-martial when empowered by the
President. P.
255 U. S.
18.
2. A general order of the President lodging this power in the
commander of designated military camps is judicially noticed as
part of the law of the land, and the legality of a court-martial
established under it is not affected by omission to refer to it in
the order convening the court-martial.
Id.
3. A general court-martial, so convened by a camp commander, has
jurisdiction to try an officer of the rank of captain. P.
255 U. S.
19.
4. The judgment of a court-martial is open to collateral attack
for want of jurisdiction, and, to sustain such a judgment, it must
appear that the facts essential to the jurisdiction existed when
the jurisdiction was exercised.
Id.
5. Where the due convocation of a court-martial with
jurisdiction to try offenses of the class in question is
established on the face of its record, the existence of a
particular fact not so shown, but acted upon by the court-martial
and necessary to its jurisdiction over the particular case, may be
proven in support of its judgment upon a collateral attack. P.
255 U. S.
20.
6.
Held that evidence was admissible in a habeas corpus
proceeding to prove the military status of the relator at the time
of his trial and conviction where the record of the court-martial
was silent on the subject beyond showing that he was charged as a
captain in the army.
Id.
7. Upon an appeal from a judgment in habeas corpus, evidence
upon which the lower court's decision depended must be brought up
in the record, though it need not be in the form of a bill of
exceptions.
Id.
8. In providing that "no person shall be tried by court-martial
for
Page 255 U. S. 12
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. 21.
Kahn v. Anderson, ante, 255 U. S. 1.
9. An erroneous designation of the place for executing a
sentence of imprisonment imposed by a court-martial does not go to
the jurisdiction to sentence and does not entitle the accused to
his discharge on habeas corpus, but he should be retained for a new
designation.
Id.
262 F. 702, affirmed.
The case is stated in the opinion.
Page 255 U. S. 16
MR. CHIEF JUSTICE WHITE delivered the opinion of the Court.
In his return to a writ of habeas corpus, which was allowed on
the petition of appellant, averring that he was restrained of his
liberty in violation of his constitutional rights, the warden of
the penitentiary at Atlanta, asserting the lawfulness of his
custody of the petitioner, annexed as part of his return the
following documents:
(1) A copy of General Orders, No. 56, issued by the President on
June 13, 1918, conferring upon the commanders of designated camps,
among them Camp Sevier, S.C., the authority to convene a general
court-martial.
(2) General Court-Martial Orders No. 139, issued by the War
Department under date of April 29, 1919, announcing that, under
Special Orders, No. 172, dated "October 10, 1918, Headquarters,
Camp Sevier, S.C." (issued by the commanding officer of that camp),
a general court-martial had convened at Camp Sevier on October 30,
1918, and before it there was arraigned and tried "Captain William
J. Givens, Infantry, United States Army," under the charge of
having murdered at or near Camp Sevier a named private soldier;
that at the trial the accused officer had pleaded not guilty, and,
although acquitted of the charge of murder, had been found guilty
of manslaughter and had been sentenced to dismissal from the army
and to 10 years at hard labor at a place to be designated by the
reviewing authority. The order
Page 255 U. S. 17
further recited the approval of the sentence by the reviewing
authority (the commander at Camp Sevier) and a like approval, with
direction that the sentence be executed, made by the President on
April 14, 1919, and concluded by announcing the dismissal of the
convicted officer from the army as of the date of April 30,
1919.
(3) A telegram from the War Department to the commander at Camp
Sevier announcing the approval of the sentence by the President,
the dismissal of the officer from the army, that the United States
penitentiary at Atlanta, Ga. was designated as the place of
confinement, and directing the said commander to deliver the
officer to that penitentiary.
(4) A letter from the Adjutant General of the Army of date April
29, 1919, directed to the warden of the penitentiary at Atlanta,
transmitting him a copy of the telegram sent to the commanding
officer at Camp Sevier, as previously stated, and informing him
that, in due season, a copy of the official order promulgating the
trial, conviction, and approval of the sentence would be sent to
him.
Upon a traverse of the return and the pleadings, the case was
heard and in a careful opinion the court, maintaining the
sufficiency of the return, discharged the writ and remanded the
petitioner to custody, and, as the result of an appeal, the
correctness of its action is here for decision.
The grounds relied upon for reversal relate to three subjects:
(1) the alleged illegality of the court because of want of power in
the officer by whom it was called to convene it; (2) the failure of
the record to show that the accused was an officer in the army or
was in any way amenable to trial by court-martial, and the absence
of jurisdiction in the court, in any event, to try a charge of
murder, because by law no person could be tried by court-martial
for murder committed within the United
Page 255 U. S. 18
states in time of peace, and there was no averment negativing a
time of peace, and that, in fact, peace prevailed at the time of
the trial; (3) the asserted unlawfulness of the confinement of the
petitioner in the penitentiary at Atlanta because the record failed
to establish that the place had been designated by the President,
the final reviewing authority.
We come to test these grounds in the order stated. The court was
undoubtedly a general court-martial, and was convened by the
commander of Camp Sevier. The power to convoke it, however, is not
to be solely measured by the authority possessed by a camp
commander, but in the light of the authority given to the President
by the 8th Article of War, to empower "the commanding officer of
any district or of any force or body of troops" to appoint general
courts-martial, and by the exertion of that power by the President
manifested by General Orders, No. 56, conferring upon the
commanding officer at Camp Sevier the authority to call a general
court-martial. True, it is insisted that the words, "the commanding
officer of any district or of any force or body of troops," are not
broad enough to embrace the commanding officer at Camp Sevier;
that, in issuing Order No. 56, the President therefore exceeded the
power conferred upon him, and hence that Order No. 56, insofar as
it gave the power stated to camp commanders, was void. But the text
of Article 8 so clearly demonstrates the unsoundness of the
contention that we deem it unnecessary to refer further to it. And,
as General Orders, No. 56, was a part of the law of the land, which
we judicially notice without averment or proof (
Gratiot v.
United States, 4 How. 80,
45 U. S. 117;
Jenkins v. Collard, 145 U. S. 547,
145 U. S. 560;
Caha v. United States, 152 U. S. 211,
152 U. S.
221), we think the contention that that law should not
have been enforced because it was not referred to by the camp
commander in exerting the power which he possessed in virtue of
that order is also without merit.
Page 255 U. S. 19
These conclusions render no longer applicable the contention
that the court-martial was without jurisdiction because a special
court appointed by a camp commander had no jurisdiction to try an
officer with the rank of captain, but they do not dispose of the
proposition that the record failed to show that the accused
belonged to the army without reference to his rank, and was
therefore subject to trial by a military court.
Conceding that the possession by the accused of a status
essential to the exercise by the court-martial of its power was
jurisdictional, and therefore may not be held to have existed
merely because of an estoppel, and conceding further that, except
for the form of the charge, the record failed to establish such
status, we are brought to determine, as was the lower court,
whether evidence was admissible to show such capacity at the time
of the trial and conviction, and thus make clear the precise
condition upon which the court acted.
Undoubtedly courts-martial are tribunals of special and limited
jurisdiction whose judgments, so far as questions relating to their
jurisdiction are concerned, are always open to collateral attack.
True also is it that, in consequence of the limited nature of the
power of such courts, the right to have exerted their jurisdiction,
when called in question by collateral attack, will be held not to
have existed unless it appears that the grounds which were
necessary to justify the exertion of the assailed authority existed
at the time of its exertion, and therefore were or should have been
a part of the record.
Wise v.
Withers, 3 Cranch 331;
Ex
parte Watkins, 3 Pet. 209;
Dynes v.
Hoover, 20 How. 65;
Runkle v. United
States, 122 U. S. 543,
122 U. S. 555;
McClaughry v. Deming, 186 U. S. 49,
186 U. S.
62-63.
The question before us is thus a narrow one, since it comes only
to this: in a case such as that before us, where the power to
convoke a court-martial is established
Page 255 U. S. 20
on the face of the record and the authority of the court to
decide the particular subject before it is therefore undoubted,
does the right exist, in the event of a collateral attack upon the
judgment rendered, made on the ground that a particular
jurisdictional fact upon which the court acted is not shown by the
record to have been established, to meet such attack by proof as to
the existence of the fact which the court treated as adequately
present for the purpose of the power exerted?
Considering that subject in the light stated, we think the court
below was right in admitting, as it did, evidence to show the
existence of a military status in the accused, since it did not
change the court-martial record, but simply met the collateral
attack by showing that, at the time of the trial, the basis existed
for the exertion by the court of the authority conferred upon
it.
It is true that general expressions will be found in some of the
reported cases to the effect that wherever a fact upon which the
jurisdiction of a court-martial or other court of limited
jurisdiction depends is questioned, it must appear in the record
that such fact was established. But these expressions should be
limited in accordance with the ruling which we now make. We so
conclude because the complete right to collaterally assail the
existence of every fact which was essential to the exercise by such
a limited court of its authority, whether appearing on the face of
the record or not, is wholly incompatible with the conception that,
when a collateral attack is made, the face of the record is
conclusive. Indeed, some of the leading cases make clear the
incongruity of any other conclusion, and serve to indicate that the
expressions as to the face of the record contemplate not the record
assailed by the collateral attack, but the record established as
the result of the proof heard on such attack.
Galpin v.
Page, 18 Wall. 350;
Runkle v. United
States, 122 U. S. 543.
Although there is no bill of exceptions, as the case is
Page 255 U. S. 21
here on appeal, the evidence upon which the court below acted is
open for our consideration, and would seem to be in the record,
although a compliance with the praecipe of the appellant would have
required the clerk to exclude it. Under these conditions, we
content ourselves with saying that if, as a consequence of the
action of the appellant, the proof is not in the record, the means
of examining the conclusion of the court in that respect would be
wanting, and we could not disturb the decree appealed from. If, on
the other hand, the documents in the record not referred to by the
praecipe of the appellant embraced the proof which the court
admitted and upon which it acted, we are of opinion that they
abundantly sustain the conclusion which the court based upon them,
and therefore make clear the existence at the time of the trial of
a military status in the accused officer adequate to sustain the
jurisdiction of the court-martial.
The contention that the court was without jurisdiction because
the trial occurred in a time of peace and that, under that
condition, Article of War 92 deprived courts-martial of
jurisdiction to try for murder has been held to be without merit in
Kahn v. Anderson, ante, 255 U. S. 1, which
therefore disposes of that question as presented here. This renders
it unnecessary to consider the government's insistence that, as the
conviction was for manslaughter, the trial was for that crime
although the charge was murder.
As respects the designation of the penitentiary at Atlanta as
the place for executing the sentence at hard labor which was
imposed, we are of opinion that, if effect be given to documents
which are in the record and to which the lower court referred, it
would clearly result that the court rightly held that, under the
conditions disclosed, the order for confinement at Atlanta was
virtually the order of the President, and the contention to the
contrary now made is devoid of merit.
United
States v.
Page 255 U. S. 22
Page, 137 U. S. 673,
137 U. S.
678-682;
United States v. Fletcher,
148 U. S. 84,
148 U. S. 88-91;
Ide v. United States, 150 U. S. 517;
Bishop v. United States, 197 U. S. 334,
197 U. S.
341-342. But, as pointed out by the court below, the
mere designation of the place for carrying out the sentence did not
involve the jurisdiction of the court (
Schwab v. Berggren,
143 U. S. 442,
143 U. S. 451;
In re Cross, 146 U. S. 271,
146 U. S.
277-278), and, if erroneous, would only lead to
retaining the accused for a new designation of place of
confinement, and we see no reason under the condition of the record
to reverse the action of the court below on that subject.
What we have said disposes of every material contention in the
case, although we have not expressly noticed the many suggestions
based upon the supposed duty on the trial, before the
court-martial, to negative every possible condition the existence
of which might have prevented that court from trying the case,
among which was the possibility that the officer under trial might
have belonged to a command which did not come within the power to
call a court-martial conferred upon the camp commander by General
Orders, No. 56, particularly since the suggestion now made on that
subject seems to have been an afterthought, and not to have been
called to the attention of the court below in any way.
Affirmed.