Petitioner, while on active duty with the United States Army in
Germany, was convicted of rape by a general court-martial. He
applied to the Federal District Court for a writ of habeas corpus,
challenging the legality of his detention under the sentence, on
the ground that he was insane at the time of the offense.
the military tribunal that tried petitioner was
not deprived of jurisdiction by the manner in which the insanity
issue was dealt with, and habeas corpus was therefore not an
available remedy. Pp. 340 U. S.
1. Under the law governing court-martial procedure, there must
be afforded a defendant at some point of time an opportunity to
tender the issue of insanity, and petitioner was afforded that
opportunity. P. 340 U. S.
2. Any error that may be committed by the military authorities
in evaluating the evidence tendered is beyond the reach of review
by the civil courts. P. 340 U. S.
3. The fact that the law member of the court-martial was not
named from the Judge Advocate General's Department does not
establish a gross abuse of discretion in the absence of a showing
of the availability of an officer of the Department. P.
340 U. S.
4. The provision of Article 4 of the revised Articles of War,
whereby an accused may request that enlisted men be included on the
court-martial, was not yet in effect when petitioner was tried, and
the fact that he was tried by a court-martial composed wholly of
officers does not raise a question which goes to jurisdiction. Pp.
340 U. S.
5. The right to trial by jury guaranteed by the Sixth Amendment
is not applicable to trials by courts-martial or military
commissions. P. 340 U. S.
178 F.2d 760, affirmed.
In a habeas corpus proceeding to secure petitioner's release
from imprisonment under a sentence of a general court-martial, the
District Court dismissed the petition
Page 340 U. S. 123
and remanded petitioner to custody. The Court of Appeals
affirmed. 176 F.2d 260, 178 F.2d 760. This Court granted
certiorari. 339 U.S. 977. Affirmed,
p. 340 U. S.
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
Petitioner, while on active duty with the Army in Germany, was
convicted by a general court-martial of rape on a German girl. The
sentence of death, originally imposed, was reduced to a term of
years. This case arises on a petition for a writ of habeas corpus
filed in the District Court, challenging the legality of
petitioner's detention under that sentence. That court denied the
petition, and the Court of Appeals affirmed. 176 F.2d 260; 178 F.2d
760. The main point presented by the petition for certiorari is
whether the military tribunal that tried petitioner was deprived of
jurisdiction by reason of the treatment of the insanity issue
tendered by petitioner. We hold that it was not.
The charges against petitioner were referred to an investigating
officer in accordance with Article 70 of the Articles of War, 10
U.S.C. (1946 ed.) § 1542. The investigating officer reported that
he had no reasonable ground for believing petitioner was deranged.
A neuropsychiatrist attached to petitioner's division reported,
after examining petitioner, that he was legally sane. The Division
Staff Judge Advocate recommended a general court-martial trial,
stating there was no reason to believe petitioner to be temporarily
or permanently deranged. The defense of insanity was not raised,
however, either at the pretrial investigation or the trial itself.
After the trial,
Page 340 U. S. 124
petitioner's trial counsel wrote the Division Commanding General
requesting that the case be reopened and petitioner be given a
neuropsychiatric examination on the ground that counsel had
received information that petitioner might have been in an
epileptic fit at the time of the offense. This request received the
concurrence of five of the six members of the court-martial, and
was accompanied by similar letters from two officers and a sergeant
of petitioner's division. The record was in this condition when it
was reviewed by General Eisenhower of the European Theater of
Operations, by the Board of Review of that Theater, and by the
Assistant Judge Advocate General.
There was evidence in the hearing before the District Court that
petitioner may have been either insane or drunk at the time of the
We put to one side the due process issue which respondent
presses, for we think it plain from the law governing court-martial
procedure that there must be afforded a defendant at some point of
time an opportunity to tender the issue of insanity. It is only a
denial of that opportunity which goes to the question of
jurisdiction. That opportunity was afforded here. Any error that
may be committed in evaluating the evidence tendered is beyond the
reach of review by the civil courts.
The Manual prescribes the ordinary test of criminal
whether the accused was able to tell
right from wrong. [Footnote 1
Insanity is a defense. [Footnote
] The pretrial
Page 340 U. S. 125
procedure prescribed in Article 70 offers the accused an
opportunity to present the defense of insanity. Petitioner had that
opportunity. The Manual provides that the reviewing authority (here
the Commanding General of the Division) "will take appropriate
action where it appears from the record or otherwise that the
accused may have been insane" at the time of the crime, whether or
not such question was raised at the trial. [Footnote 3
] That is also a provision which is
applicable to the confirming authority [Footnote 4
] (here, the General in charge of the European
Theater of Operations). The confirming authority had before it the
request of the defense counsel and the other letters and
recommendations submitted to it. The Manual does not require either
the reviewing authority or the confirming authority to halt the
proceedings, make a further investigation, or start over again. It
entrusts the matter to the discretion of those authorities.
Petitioner had a further consideration by the military
authorities of the insanity issue which he tenders. By Article 53
of the revised Articles of War, Act of June 24, 1948, 62 Stat. 639,
642, 10 U.S.C. § 1525, which was effective February 1, 1949, the
Judge Advocate General is authorized "upon application of an
accused person, and upon good cause shown, in his discretion to
Page 340 U. S. 126
a new trial" in any court-martial case on application within the
prescribed time limits. That Article became effective after the
petition for habeas corpus was filed. But, while the case was
pending on appeal, the Court of Appeals delayed final action while
petitioner made application under Article 53. The Judge Advocate
General reviewed all the evidence on the insanity issue which
petitioner had tendered both to the military authorities and to the
District Court in the habeas corpus proceeding, and concluded
"I entertain no doubt that Whelchel was so far free from mental
defect, disease, and derangement as to be able concerning the
particular acts charged both to distinguish right from wrong and to
adhere to the right. . . ."
Any error by the military in evaluating the evidence on the
question of insanity would not go to jurisdiction, the only issue
before the court in habeas corpus proceedings.
The law member of the court-martial was not named from the Judge
Advocate General's Department. But, since no showing was made of
the availability of such a member, a case of gross abuse of
discretion has not been established. See Hiatt v. Brown,
339 U. S. 103
339 U. S.
Under Article 4 of the revised Articles of War, an accused may
now request that enlisted men be included on the court-martial that
tries him. [Footnote 5
was no such provision of the law when petitioner was tried.
] But the fact that
he was tried by a court-martial composed wholly of officers does
not raise a question which goes to jurisdiction. Petitioner can
gain no support from the analogy
Page 340 U. S. 127
of trial by jury in the civil courts. The right to trial by jury
guaranteed by the Sixth Amendment is not applicable to trials by
courts-martial or military commissions. See Kahn v.
Anderson, 255 U. S. 1
255 U. S. 8
Ex parte Quirin, 317 U. S. 1
317 U. S. 40
Courts-martial have been composed of officers both before and after
the adoption of the Constitution. [Footnote 7
] The constitution of courts-martial, like other
matters relating to their organization and administration, see
Kahn v. Anderson, supra,
at 255 U. S. 6
Swaim v. United States, 165 U. S. 553
165 U. S.
-559; Mullan v. United States, 140 U.
, 140 U. S.
-245; Martin v. Mott,
12 Wheat. 19, 25 U. S. 34
is a matter appropriate for congressional action.
Manual for Courts-Martial (1928 ed.)
"A person is not mentally responsible for an offense unless he
was at the time so far free from mental defect, disease, or
derangement as to be able concerning the particular acts charged
both to distinguish right from wrong, and to adhere to the
Paragraph 63 of the Manual provides:
"The court will inquire into the existing mental condition of
the accused whenever, at any time while the case is before the
court, it appears to the court for any reason that such inquiry
ought to be made in the interest of justice. Reasons for such
action may include anything that would cause a reasonable man to
question the accused's mental capacity either to understand the
nature of the proceedings or intelligently to conduct or to
cooperate in his defense."
"If the court determines that the accused was not mentally
responsible, it will forthwith enter a finding of not guilty as to
the proper specification."
"Where a reasonable doubt exists as to the mental responsibility
of an accused for an offense charged, the accused cannot legally be
convicted of that offense."
10 U.S.C.Supp. III, § 1475.
At the time of petitioner's trial, Article 4, 10 U.S.C. (1946
ed.) § 1475, provided in pertinent part as follows:
"All officers in the military service of the United States, and
officers of the Marine Corps when detached for service with the
Army by order of the President, shall be competent to serve on
courts-martial for the trial of any persons who may lawfully be
brought before such courts for trial."
collection of precedents in Winthrop's Military Law
and Precedents,2d ed., Reprint 1920: British Articles of War of
1765, p. 942; American Articles of War of 1776, p. 967; American
Articles of War of 1806, pp. 981-982.