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."
MR. CHIEF JUSTICE FULLER delivered the opinion of the Court.
In
Carter v. Roberts, 177 U. S. 496, it
was said:
"The eighth section of Article I of the Constitution provides
that the Congress shall have power 'to make rules for the
government and regulation of the land and naval forces,' and, in
the exercise of that power, Congress has enacted rules for the
regulation of the army known as the 'articles of war.' Rev.Stat.
§ 1342. Every officer, before he enters on the duties of his
office, subscribes to these articles, and places himself within the
power of courts-martial to pass on any offense which he may have
committed in contravention of them. Courts-martial are lawful
tribunals,
Page 183 U. S. 381
with authority to finally determine any case over which they
have jurisdiction, and their proceedings, when confirmed as
provided, are not open to review by the civil tribunals, except for
the purpose of ascertaining whether the military court had
jurisdiction of the person and subject matter, and whether, though
having such jurisdiction, it had exceeded its powers in the
sentence pronounced."
Jurisdiction over the person is conceded, but it is argued that
there was no jurisdiction over the subject matter, because the
evidence affirmatively showed that no crime whatever had been
committed. Whether the sentence of a military court, approved by
the reviewing authority, is open to attack in the civil courts on
such a ground is a question which does not arise on this record.
The motion to discharge conceded the return to be true, and if the
return showed sufficient cause for detention, the circuit court was
right in dismissing the writ, and its final order to that effect
must be affirmed. No evidence was adduced in or considered by the
circuit court, and none is before us, nor is any inquiry into the
innocence or guilt of the accused permissible.
Was, then, the sentence void for want of power to pronounce and
enforce it?
The particular ground on which the appeal directly to this Court
may be rested is that the case involved the construction or
application of the Constitution in the contention that, by the
sentence petitioner was twice punished for the same offense.
That question was put forward in the petition and manifestly
argued on the return. The circuit court states in its opinion
that
"it is contended in behalf of Carter that his imprisonment is in
violation of the Constitution of the United States, and is
otherwise illegal and without warrant of law."
And, indeed, the application of the Constitution would seem to
be necessarily involved if the sentence were held invalid on other
grounds.
Holding the case to be properly before us, it will be more
convenient to examine the constitutional point specially raised
after we have considered some of the other objections to the
sentence.
One of these objections is that the sentence exceeded the
Page 183 U. S. 382
maximum punishment fixed by the President, under the Act of
Congress approved September 27, 1890, 26 Stat. 491, c. 998, because
the term of imprisonment imposed was five instead of four
years.
That act provides that,
"whenever by any of the articles of war for the government of
the army the punishment on conviction of any military offense is
left to the discretion of the court-martial, the punishment
therefor shall not, in time of peace, be in excess of a limit which
the President may prescribe."
February 26, 1891, the President made an executive order in
limitation of punishment which was promulgated to the army in
General Orders No. 21, February 27, 1891, and therein it was
said:
"In accordance with an act of Congress of September 27, 1890,
the following limits to the punishment of enlisted men, together
with the accompanying regulations, are established for the
government in time of peace, for all courts-martial, and will take
effect thirty days after this order."
This executive order was amended by the President March 20,
1895, and again amended March 30, 1898, and in 1901. In neither of
these executive orders were its provisions extended to commissioned
officers, and they solely related to the cases of enlisted men. It
is true that clause 938 of the army regulations promulgated October
31, 1895, provides:
"Whenever by any of the articles of war punishment is left to
the discretion of the court, it shall not, in time of peace, be in
excess of a limit which the President may prescribe. The limits so
prescribed are set forth in the Manual for Courts-Martial,
published by authority of the Secretary of War."
But we do not find in the manual any attempt to extend the
limitations to others than enlisted men, and it is evident that a
limit on discretion in punishment to be imposed by the President
only can only have such operation as he may affirmatively
prescribe.
It is further urged that the punishments of fine and
imprisonment were illegal because inflicted after Captain Carter
had ceased to be an officer of the army.
The different provisions of the sentence took effect
concurrently while the accused was under the control of the
military authorities of the United States as a commissioned officer
of
Page 183 U. S. 383
the army. The dates of the order of dismissal, of the infliction
of the fine, and of the beginning of the imprisonment were the same
date.
The accused was proceeded against as an officer of the army, and
jurisdiction attached in respect of him as such, which included not
only the power to hear and determine the case, but the power to
execute and enforce the sentence of the law. Having been sentenced,
his status was that of a military prisoner held by the authority of
the United States as an offender against its laws.
He was a military prisoner, though he had ceased to be a
soldier, and for offenses committed during his confinement he was
liable to trial and punishment by court-martial under the rules and
articles of war. Rev.Stat. § 1361.
It may be added that the principle that, where jurisdiction has
attached, it cannot be divested by mere subsequent change of status
has been applied as justifying the trial and sentence of an
enlisted man after expiration of the term of enlistment,
Barrett v. Hopkins, 7 F. 312, and the execution of
sentence after the lapse of many years and the severance of all
connection with the army.
Coleman v. Tennessee,
97 U. S. 509.
In the latter case, this Court held at October term, 1878, that
a soldier who had been convicted of murder and sentenced to death
by a general court-martial in 1865, but whose sentence had not been
executed, might "be delivered up to the military authorities of the
United States, to be dealt with as required by law." In this matter
it was subsequently advised by Attorney General Devens that the
death sentence might legally be carried into effect notwithstanding
the fact that the soldier had in the meantime been discharged from
the service, under the circumstances detailed, but he recommended
that the sentence be commuted, and this recommendation was
followed. 16 Op.Atty.Gen. 349.
In
Ex Parte Mason, 105 U. S. 696,
where the accused was sentenced by a general court-martial to
dishonorable discharge, forfeiture of pay, and eight years'
imprisonment in the Albany Penitentiary, an application for release
on habeas corpus was denied, and the sentence held to be legal.
Page 183 U. S. 384
Another objection strenuously insisted on is that the sentence
ceased to be the sentence of the court-martial because of the
disapproval of certain specifications by the President.
The 65th article of those enacted by Congress April 10, 1806, 2
Stat. 359, c. 20, provided:
"But no sentence of a court-martial shall be carried into
execution until after the whole proceedings shall have been laid
before the officer ordering the same, or the officer commanding the
troops for the time being."
In the Revised Statutes this part of the 65th article of war was
made article 104, and read:
"No sentence of a court-martial shall be carried into execution
until the whole proceedings shall have been approved by the officer
ordering the court, or by the officer commanding for the time
being."
By the Act of July 27, 1892, 27 Stat. 277, c. 272, the 104th
article was amended so as to read:
"No sentence of a court-martial shall be carried into execution
until the same shall have been approved by the officer ordering the
court, or by the officer commanding for the time being."
The original article required
the whole proceedings to be
laid before the reviewing authority; the Revised Statutes,
that
the whole proceedings should be approved; the Act of
July 27, 1892, that the
sentence should not be carried
into execution until
it was approved. From this
legislation, it appears that the approval of the sentence, and not
of the whole proceedings, is now the prerequisite to carrying the
sentence into execution, and this is in harmony with articles 105,
106, 107, and 108.
In
Claassen v. United States, 142 U.
S. 140,
142 U. S. 146,
it was said:
"In criminal cases, the general rule, as stated by Lord
Mansfield before the Declaration of Independence, is 'that, if
there is any one count to support the verdict, it shall stand good,
notwithstanding all the rest are bad.'
Peake v. Oldham, 1
Cowp. 275, 276;
Rex v. Benfield, 2 Burr. 980, 985.
See
also Grant v. Astle, 2 Dougl. 722, 730. And it is settled law
in this Court, and in this country generally, that in any criminal
case a general verdict and judgment on an indictment or information
containing several counts cannot be reversed on error, if any one
of the counts is good and warrants the judgment, because, in the
absence of anything in the record to show the contrary, the
presumption
Page 183 U. S. 385
of law is that the court awarded sentence on the good count
only."
In
Ballew v. United States, 160 U.
S. 187, where the indictment embraced two counts, each
setting up a distinct offense, the court instructed the jury that,
if they considered the defendant guilty on one count and innocent
on the other, they should so find, and that, if they found him
guilty on both counts, that they should return a general verdict of
guilty. A general verdict of guilty was returned, and judgment
rendered thereon.
This Court held that error had been committed in the conviction
as to the first count, but none in the conviction upon the other,
and as the general verdict covered both, the judgment was reversed
under the statute in that behalf, and the cause remanded, with
instructions to enter judgment on the second count.
In
Putnam v. United States, 162 U.
S. 687, where there was a conviction on two counts, and
the sentence imposed was distinct and separate as to each count,
but was made concurrent so that the entire amount of punishment
imposed would be undergone if the judgment were sustained under
either court, error being found in the conviction as to one of
them, the judgment was reversed as to that count, and affirmed on
the other.
We are dealing here with no matter of insufficient counts or of
conviction of two offenses, sustainable only as to one, but the
analogies of the criminal law bear out the procedure under the
military law, the rules of which determine the present
contention.
That contention after all amounts to no more than to say that,
if the court-martial had acquitted on the disapproved findings, it
must be assumed that the sentence would have been less severe, and
therefore that the President should have sent the case back or
mitigated the punishment, and that, because he did not, the
punishment must be conclusively regarded as increased. This is
wholly inadmissible when the powers vested in the ultimate tribunal
are considered.
The court-martial for the trial of Captain Oberlin M. Carter was
convened by orders issued by the President, and he was therefore
the reviewing authority, and the court of last resort.
Page 183 U. S. 386
The law governing courts-martial is found in the statutory
enactments of Congress, particularly the articles of war; in the
army regulations, and in the customary military law. According to
military usage and practice, the charge is in effect divided into
two parts, the first technically called the "charge," and the
second the "specification." The charge proper designates the
military offense of which the accused is alleged to be guilty. The
specification sets forth the acts or omissions of the accused which
form the legal constituents of the offense. The pleading need not
possess the technical nicety of indictments as at common law.
"Trials by courts-martial are governed by the nature of the
service, which demands intelligible precision of language, but
regards the substance of things, rather than their forms."
7 Op.Atty.Gen. 604. Not only do military usage and procedure
permit of an indefinite number of offenses being charged and
adjudicated together in one and the same proceeding, but the rule
is recognized that, whenever an officer has been apparently guilty
of several or many offenses, whether of a similar character or
distinct in their nature, charges and specifications covering them
all should, if practicable, be preferred together, and together
brought to trial. 1 Winthrop, Military Law, 219; 22 Op.Atty.Gen.
595. And it has been repeatedly ruled by the Judges Advocate
General that
"a duly approved finding of guilty on one of several charges, a
conviction upon which requires or authorizes the sentence adjudged,
will give validity and effect to such sentence, although the
similar findings on all the other charges are disapproved as not
warranted by the testimony."
Digest of Opinions of Judge Advocate General, ed. 1895, p. 696;
id., ed. 1868, pp. 343, 350.
The sentence against Captain Carter was rendered on findings of
guilty of four charges and certain specifications thereunder.
It devolved on the President to approve or to disapprove the
sentence. Before taking action he referred the proceedings to the
Attorney General, who submitted a careful report thereon, and
recommended the disapproval of certain findings. 22 Op.Atty.Gen.
589. These related to facts of less gravity under Charges I and II
than the others set up thereunder, and those under Charge
Page 183 U. S. 387
III thought objectionable were not material, as dismissal was
the sole punishment under that charge. The President disapproved of
the findings of guilty of some of the specifications under two of
the charges, and approved findings of guilty of a specification or
specifications under each of the charges, and of the findings of
guilty of all of the charges, and approved the sentence. He might
have referred the proceedings back to the court for revision, but
he was not required to do so -- if in his opinion this was not
necessary, and the sentence was justified by the findings which he
did approve. As President, he might have exercised his
constitutional power to pardon, or, as the reviewing authority, he
might have pardoned or mitigated the punishment adjudged, except
that of dismissal, although he had no power to add to the
punishment. He did not think it proper to remand, to mitigate, or
to pardon. He clearly acted within his authority, whether the
articles of war, the army regulations, or the unwritten or
customary military law be considered, and the judgment he rendered
cannot be disturbed on the ground suggested.
We are brought then to consider the two propositions on which
much of the stress of the argument was laid.
First. That the finding of guilty of Charge IV and its
specification was beyond the powers of the court-martial.
Second. That if that finding were void, then that the sentence
was in violation of the Fifth Amendment to the Constitution.
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."
Charge III was: "Conduct unbecoming an officer and a gentleman,
in violation of the 61st article of war." Charge IV. was:
"Embezzlement, as defined in section 5488 of the Revised Statutes,
in violation of the 62d article of war."
If Charge IV be laid out of view, let us see if the sentence was
void because in violation of the Fifth Amendment.
That amendment declares: "Nor shall any person be subjected for
the same offense to be twice put in jeopardy of life or limb."
Page 183 U. S. 388
The government objects in the outset that the Fifth Amendment is
not applicable in proceedings by court-martial, and that the
question could only be raised under the 102d article of war, which
reads: "No person shall be tried a second time for the same
offense," and that, moreover, the point was not raised in the
court-martial that proceeding to judgment under these three charges
would be either in violation of the 102d article of war or of the
Fifth Amendment, and comes too late on application for habeas
corpus. And, further, that the question was one within the power of
the court-martial to decide, and must be held to have been waived,
or be assumed to have been ruled against the accused, in which case
the decision would be conclusive on habeas corpus, since, if
incorrect it would be merely error, and would not go to the
jurisdiction.
In
In re Belt, 159 U. S. 95, we
held that the Supreme Court of the District of Columbia had
jurisdiction and authority to determine the validity of an act
which authorized the waiver of a jury, and to dispose of the
question as to whether the record of a conviction before a judge
without a jury, where the prisoner waived trial by jury according
to statute, was legitimate proof of a first offense, and that, this
being so, this Court could not review the action of that court and
the court of appeals in this particular on habeas corpus.
The case of
Ex Parte Bigelow was referred to and quoted
from thus:
"In
Ex Parte Bigelow, 113 U. S. 328,
113 U. S.
330, which was a motion for leave to file a petition for
habeas corpus, the petitioner had been convicted and sentenced in
the Supreme Court of the District to imprisonment for five years
under an indictment for embezzlement. It appeared that there were
pending before that court fourteen indictments against the
petitioner for embezzlement, and an order of the court had directed
that they be consolidated under the statute and tried together. A
jury was impaneled and sworn, and the district attorney had made
his opening statement to the jury, when the court took a recess,
and upon reconvening a short time afterwards, the court decided
that the indictments could not be well tried together, and directed
the jury to be discharged from the further consideration of them,
and rescinded the order of consolidation.
Page 183 U. S. 389
The prisoner was thereupon tried before the same jury on one of
the indictments, and found guilty. All of this was against his
protest and without his consent. The judgment on the verdict was
taken by appeal to the Supreme Court of the District in general
term, where it was affirmed. It was argued here, as it was in the
court in general term, that the impaneling and swearing of the jury
and the statement of his case by the district attorney put the
prisoner in jeopardy in respect of all the offenses charged in the
consolidated indictment, within the meaning of the Fifth Amendment,
so that he could not be again tried for any of these offenses, and
Mr. Justice Miller, delivering the opinion of the Court, after
remarking that, if the court of the District was without authority
in the matter, this Court would have power to discharge the
prisoner from confinement, said:"
"But that court had jurisdiction of the offense described in the
indictment on which the prisoner was tried. It had jurisdiction of
the prisoner, who was properly brought before the court. It had
jurisdiction to hear the charge and the evidence against the
prisoner. It had jurisdiction to hear and decide upon the defenses
offered by him. The matter now presented was one of those defenses.
Whether it was a sufficient defense was a matter of law on which
that court must pass, so far as it was purely a question of law,
and on which the jury, under the instructions of the court, must
pass if we can suppose any of the facts were such as required
submission to the jury. If the question had been one of former
acquittal -- a much stronger case than this -- the court would have
had jurisdiction to decide upon the record whether there had been a
former acquittal for the same offense, and if the identity of the
offense were in dispute, it might be necessary on such a plea to
submit that question to the jury on the issue raised by the plea.
The same principle would apply to a plea of a former conviction.
Clearly in these cases the court not only has jurisdiction to try
and decide the question raised, but it is its imperative duty to do
so. If the court makes a mistake on such trial, it is error which
may be corrected by the usual modes of correcting such errors, but
that the court had jurisdiction to decide upon the matter raised by
the plea, both as matter of law and of fact,
Page 183 U. S. 390
cannot be doubted. . . . It may be confessed that it is not
always very easy to determine what matters go to the jurisdiction
of a court, so as to make its action when erroneous a nullity. But
the general rule is that, when the court has jurisdiction by law of
the offense charged, and of the party who is so charged, its
judgments are not nullities."
"And the application was denied."
It is difficult to see why the sentences of courts-martial --
courts authorized by law in the enforcement of a system of
government for a separate community recognized by the Constitution
-- are not within this rule. Its application would seem to be
essential to the maintenance of that discipline which renders the
army efficient in war and morally progressive in peace, and which
is secured by the military code and the decisions of the military
courts.
Reserving, however, the determination of these questions, it is
nevertheless clear that the system under which the accused was
tried and his status as an officer of the army must be borne in
mind in deciding whether the amendment, if applicable, was or was
not violated by this sentence.
The contention is that Captain Carter was twice put in jeopardy
because the sentence was greater than the court-martial had
jurisdiction to inflict on conviction of any one of the offenses
charged, taken singly, and because the offenses charged were the
same within the meaning of the constitutional provision.
Articles 60 and 61 are as follows:
"Art. 60. Any person in the military service of the United
States who makes or causes to be made any claim against the United
States, or any officer thereof, knowing such claim to be false or
fraudulent; or"
"Who presents or causes to be presented to any person in the
civil or military service thereof, for approval or payment, any
claim against the United States, or any officer thereof, knowing
such claim to be false or fraudulent; or"
"Who enters into any agreement or conspiracy to defraud the
United States by obtaining, or aiding others to obtain, the
allowance or payment of any false or fraudulent claim; or "
Page 183 U. S. 391
"Who, for the purpose of obtaining, or aiding others to obtain,
the approval, allowance, or payment of any claim against the United
States, or against any officer thereof, makes or uses, or procures
or advises the making or use of, any writing or other paper,
knowing the same to contain any false or fraudulent statement;
or"
"Who, for the purpose of obtaining, or aiding others to obtain,
the approval, allowance, or payment of any claim against the United
States, or any officer thereof, makes, or procures or advises the
making of, any oath to any fact or to any writing or other paper,
knowing such oath to be false; or"
"Who, for the purpose of obtaining, or aiding others to obtain,
the approval, allowance, or payment of any claim against the United
States, or any officer thereof, forges or counterfeits, or procures
or advises the forging or counterfeiting of, any signature upon any
writing or other paper, or uses, or procures or advises the use of,
any such signature, knowing the same to be forged or counterfeited;
or"
"Who, having charge, possession, custody, or control of any
money or other property of the United States, furnished or intended
for the military service thereof, knowingly delivers, or causes to
be delivered, to any persons having authority to receive the same,
any amount thereof less than that for which he receives a
certificate or receipt; or"
"Who, being authorized to make or deliver any paper certifying
the receipt of any property of the United States, furnished or
intended for the military service thereof, makes or delivers to any
person such writing, without having full knowledge of the truth of
the statements therein contained, and with intent to defraud the
United States; or"
"Who steals, embezzles, knowingly and willfully misappropriates,
applies to his own use or benefit, or wrongfully or knowingly sells
or disposes of any ordnance, arms, equipments, ammunition,
clothing, subsistence stores, money, or other property of the
United States, furnished or intended for the military service
thereof; or"
"Who knowingly purchases or receives in pledge for any
obligation or indebtedness, from any soldier, officer, or other
Page 183 U. S. 392
person who is a part of or employed in said forces or service,
any ordnance, arms, equipments, ammunition, clothing, subsistence
stores, or other property of the United States, such soldier,
officer, or other person not having lawful right to sell or pledge
the same,"
"Shall, on conviction thereof, be punished by fine or
imprisonment, or by such other punishment as a court-martial may
adjudge. And if any person, being guilty of any of the offenses
aforesaid, while in the military service of the United States,
receives his discharge or is dismissed from the service, he shall
continue to be liable to be arrested and held for trial and
sentence by a court-martial, in the same manner and to the same
extent as if he had not received such discharge nor been
dismissed."
"Art. 61. Any officer who is convicted of conduct unbecoming an
officer and a gentleman shall be dismissed from the service."
It is said that the punishment must be imposed under either the
60th or the 61st articles, or under both; that the only penalty
under the 61st article is dismissal; that the punishment under the
60th article may be "fine
or imprisonment, or by such
other punishment as a court-martial may adjudge," and that this is
in the alternative, and cannot be cumulative.
That that is the necessary construction is not to be conceded.
Offenses under this article may be of greater or less gravity, and
the necessity for the exercise of discretion is obvious. Conviction
in some cases might deserve the punishment of fine, or of
imprisonment, or of both, as well as of dismissal in addition to
either or both; in others, lesser penalties might suffice. The word
"or" was properly used to give play to discretion. This is the view
expressed in 2 Winthrop, Military Law, p. 1101.
The 60th article was taken from sections 1 and 2 of the Act of
March 2, 1863, 12 Stat. 696, c. 67, "to prevent and punish frauds
upon the government of the United States," brought forward in the
Revised Statutes as § 5438, and that act provided that any
person in the military service, if found guilty, "shall be punished
by fine
and imprisonment, or such other punishment as the
court-martial shall adjudge, save the punishment of
Page 183 U. S. 393
death;" while a person in civil life guilty of the offense was
punishable under section 3 "by imprisonment not less than one nor
more than five years,
or by fine of not less than one
thousand dollars and not more than five thousand dollars," but when
the military offense was transferred to the military code, the word
"and" was changed to the word "or." Hence, it is argued, that
Congress thereby indicated that it intended to confine the
punishment to either fine
or imprisonment. We do not think
this is necessarily so. The punishment of persons not in the
military or naval service (in addition to a pecuniary forfeiture
and double damages) was fixed at fine or imprisonment, and no
other. The punishment of persons in the military service was fixed
at fine and imprisonment, or such other punishment as the
court-martial might adjudge. The change of the word "and" to "or"
tended to obviate controversy as to the range of discretion.
But, suppose this otherwise, still it does not follow that a
fine might not be inflicted for the commission of one of the
offenses enumerated in article 60, and imprisonment for the
commission of another.
The penalty denounced by article 60 -- that the accused, on
conviction, may "be punished by fine or imprisonment or by such
other punishment as a court-martial may adjudge" -- is plainly to
be taken distributively, and is applicable on conviction of either
of the offenses enumerated.
We understand the rule established by military usage to be
"that the sentence of a court-martial shall be in every case an
entirety -- that is to say that there shall be but a single
sentence covering all the convictions on all the charges and
specifications upon which the accused is found guilty, however
separate and distinct may be the different offenses found and
however different may be the punishments called for by the
offenses."
1 Winthrop (2d ed.) 614.
Where, then, there is conviction of several offenses, the
sentence is warranted to the extent that such offenses are
punishable.
This was so ruled by the Circuit Court of Appeals for the Second
Circuit in
Rose ex Rel. Carter v. Roberts, 99 F.
Page 183 U. S. 394
948, and Wallace, J., speaking for the court, said:
"As has been stated, the relator was convicted of two of the
offenses defined by the 60th article of war. The record presents
the charges and specifications upon which he was found guilty of
those offenses. The charges describe each offense in the language
of the article. Whether the specifications support the charges or
the evidence supports the specifications we are not at liberty to
consider. Nor is it open to inquiry whether the two offenses were
in fact but one and the same criminal act. When properly
constituted and convened, a court-martial has jurisdiction to hear
and determine the question whether the accused is guilty of any of
the offenses created by the articles of war. This jurisdiction
necessarily includes the authority to decide, when the charge
preferred against the accused is the commission of one or more of
these offenses, whether the specifications and the evidence
sufficiently exhibit the incriminating facts. As was said by the
Supreme Court in
Dynes v. Hoover, 20 How. 65,
the sentence (when confirmed by the President)"
"is altogether beyond the jurisdiction or inquiry of any civil
tribunal whatever, unless it shall be in a case in which the court
had no jurisdiction over the subject matter or charge, or one in
which, having jurisdiction over the subject, it has failed to
observe the rules prescribed by statute for its exercise."
Having found the relator to be guilty of two offenses, the Court
was empowered by the statute to punish him as to one by fine and as
to the other by imprisonment. The sentence was not in excess of its
authority.
Cumulative sentences are not cumulative punishments, and a
single sentence for several offenses, in excess of that prescribed
for one offense, may be authorized by statute.
In re De
Bara, 179 U. S. 316;
In re Henry, 123 U. S. 372.
The offenses charged under this article were not one and the
same offense. This is apparent if the test of the identity of
offenses, that the same evidence is required to sustain them, be
applied. The first charge alleged "a conspiracy to defraud," and
the second charge alleged "causing false and fraudulent claims to
be made," which were separate and distinct offenses, one requiring
certain evidence which the other did not. The
Page 183 U. S. 395
fact that both charges related to and grew out of one
transaction made no difference.
In
Morey v. Commonwealth, 108 Mass. 433, the Supreme
Judicial Court of Massachusetts, speaking through Mr. Justice Gray,
then a member of that tribunal, held:
"A conviction or acquittal upon one indictment is no bar to a
subsequent conviction and sentence upon another, unless the
evidence required to support a conviction upon one of them would
have been sufficient to warrant a conviction upon the other. The
test is not whether the defendant has already been tried for the
same act, but whether he has been put in jeopardy for the same
offense. A single act may be an offense against two statutes, and
if each statute requires proof of an additional fact which the
other does not, an acquittal or conviction under either statute
does not exempt the defendant from prosecution and punishment under
the other."
The sentence, then, of fine and imprisonment was justified by
the convictions of the first and second charges.
Finally, it is contended on this branch of the case that the
offense under Charge III is the same offense as those under Charges
I and II, called by a different name, and hence that the punishment
of dismissal was illegal because a third punishment where but two
offenses were committed.
As heretofore said, dismissal might have been added to fine and
imprisonment, as part of the punishment, for either or both of the
offenses under the first and second charges.
But the offense of conduct unbecoming an officer and a gentleman
is not the same offense as conspiracy to defraud or the causing of
false and fraudulent claims to be made, although to be guilty of
the latter involves being guilty of the former.
Article 61 prescribes that "any officer who is convicted of
conduct unbecoming an officer and a gentleman shall be dismissed
from the service," and article 100 that,
"when an officer is dismissed from the service for cowardice or
fraud, the sentence shall further direct that the crime,
punishment, name and place of abode of the delinquent shall be
published in the newspapers in and about the camp and in the state
from which the offender came, or where he usually resides. "
Page 183 U. S. 396
Article 97 is:
"No person in the military service shall, under the sentence of
a court-martial, be punished by confinement in a penitentiary
unless the offense of which he may be convicted would, by some
statute of the state, territory, or district in which such offense
may be committed, or by the common law, as the same exists in such
state, territory, or district, subject such convict to such
punishment."
Confinement at hard labor in a penitentiary is prescribed by
sections 5438 and 5488 of the Revised Statutes, section 5438 having
been brought forward from the Act of March 2, 1863, from which the
60th article was taken.
And see Rev.Stat. § 5442, Act
March 2, 1895, 28 Stat. 957.
Conviction of Charges I and II was conviction of fraud, and
article 100 contemplates that the officer may be dismissed under
article 60 or under article 61. Conviction of fraud under article
60 plainly involves conviction under article 61, and dismissal is
as mandatory as degradation.
The contention that an officer convicted of crimes punishable in
the penitentiary under articles 60 and 97 cannot be so punished if
he be also dismissed, or cannot be dismissed if he be so punished,
is too unreasonable to be countenanced.
The result is that we are of opinion that the sentence cannot be
invalidated on any of the grounds so far considered.
The fourth charge was: "Embezzlement, as defined in section
5488, Revised Statutes of the United States, in violation of the
62d article of war."
Section 5488 reads:
"Every disbursing officer of the United States who deposits any
public money entrusted to him in any place or in any manner, except
as authorized by law, or converts to his own use in any way
whatever, or loans with or without interest, or for any purpose not
prescribed by law withdraws from the treasurer or any assistant
treasurer, or any authorized depository, or for any purpose not
prescribed by law transfers or applies any portion of the public
money entrusted to him, is in every such act deemed guilty of an
embezzlement of the money so deposited, converted, loaned,
withdrawn, transferred, or applied, and shall be punished by
imprisonment with
Page 183 U. S. 397
hard labor for a term not less than one year nor more than ten
years, or by a fine of not more than the amount embezzled or less
than one thousand dollars, or by both such fine and
imprisonment."
Article 62 is:
"Art. 62. 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."
The construction would not be unreasonable if it were held that
the words "though not mentioned in the foregoing articles of war"
meant "notwithstanding they are not mentioned," and that the
article was intended to cover
all crimes, whether
previously enumerated or not. The reference is to crimes created or
made punishable by the common law or by the statutes of the United
States, when directly prejudicial to good order and military
discipline. Our attention has not been called to any former
adjudication of the particular point by the military courts, but we
think it would be going much too far to say that, if a
court-martial so construed the words, and sentenced for a crime
previously mentioned, the sentence, when made his own by the
President, would be absolutely void.
Colonel Winthrop says, however, that
"the construction of these words has uniformly been that they
are words of limitation restricting the application of the article
to offenses not named or included in the articles preceding, the
policy of the provision being, as it is expressed by Samuel, 'to
provide a general remedy for wrongs not elsewhere provided
for.'"
Vol. 2, p. 1126.
Accepting this construction, we are nevertheless of opinion that
the specified crime was not "mentioned in the foregoing
articles."
The first and fourth subdivisions of the 60th article of war
provide that
"any person in the military service of the United States who
makes or causes to be made any claim against the United
Page 183 U. S. 398
states, or any officer thereof, knowing such claim to be false
of fraudulent,"
or
"who, for the purpose of obtaining, or aiding others to obtain,
the approval, allowance, or payment of any claim against the United
States, or against any officer thereof, makes or uses, or procures
or advises the making or use of, any writing or other paper,
knowing the same to contain any false or fraudulent statement,"
shall, on conviction, be punished.
The specification under Charge IV alleged that the accused, as a
disbursing officer of the United States, applied to a purpose not
prescribed by law large sums of public money entrusted to him for
river and harbor purposes, by causing them to be paid out by checks
on false accounts, the payment being accomplished by the drawing
and delivery of the checks directing payment to be made of moneys
of the United States, and thus withdrew, by means of checks, from
the authorized depository, moneys for an unauthorized purpose, and
applied them to unlawful purposes. The application, coupled with
the payment and withdrawal of the funds by checks, constituted the
embezzlement defined in section 5488, while the specific acts set
forth in subdivisions one and four of the 60th article were
distinct from the acts prohibited by section 5488. By the charge,
the particular offense was laid in general terms, and by the
specification the facts constituting the offense charged were
stated. The specification here set forth abstraction, by fraudulent
means, of $230,749.90 and $345,000, moneys of the United States
entrusted to the accused as a disbursing officer of the government,
but it was nonetheless
malum prohibitum because it was
also
malum in se.
Nor are we persuaded by the ingenious argument of appellant's
counsel that the crime alleged in this charge was covered by
subdivision 9 of article 60, because it was embezzlement of money
"furnished or intended for the military service," § 5488
relating to the improper disposition of any public money. That
subdivision denounces punishment of any person in the military
service of the United States
"who steals, embezzles, knowingly and willfully misappropriates,
applies to his own use or benefit, or wrongfully or knowingly sells
or disposes of, any ordinance, arms, equipments, ammunition,
clothing, subsistence
Page 183 U. S. 399
stores, money, or other property of the United States, furnished
or intended for the military service thereof."
Most of these enumerated classes of property are obviously
military stores used for military purposes, and on the principle of
noscitur a sociis all the classes designated fall into the
same category. And this seems to be put beyond question by the
words "furnished or intended for the military service thereof." The
military service as used in this connection means the land forces
or the army. The fact that money appropriated for river and harbor
improvements is disbursed by an officer of the army, and the work
supervised by the engineer force in the service of the government,
does not make the moneys so appropriated moneys "furnished or
intended for the military service," as the words are used in
paragraph 9. This was the view of Lacombe, J., in holding the
sentence supported by the conviction of the fourth charge. 97 F.
496. The circuit court of appeals, without questioning the
correctness of that conclusion, did not consider the question,
because it sustained the sentence under the conviction of the first
and second charges. The Circuit Court for the District of Kansas
concurred in the conclusions of each of the other courts. We are of
opinion that officers of the army are, in the eye of the law, on
military duty although employed as such officers under statutes of
the United States in the public service on duties not in themselves
pertaining to the army, and that the moneys disbursed by them when
so employed do not, because they are such officers, become money
furnished and intended for the military service.
Illustrations are found in the administration of appropriations
for the Indian service, the light house service, superintending the
Washington aqueduct, maintaining the public grounds about the White
House, and the like.
The appropriations made for river and harbor improvements are
per se for the benefit of commerce and navigation, and not
for military or naval purposes, and the money is furnished and
intended for public works in aid of commerce. In the exercise of
the power to regulate commerce, Congress has repeatedly legislated
in regard to the construction of river and harbor improvements in
the navigable waters of the United States
Page 183 U. S. 400
and enacted rules in relation thereto. The money made the
subject of the embezzlement in this case was appropriated to be
expended under the War Department by the act of Congress of June 3,
1896, 29 Stat. 202, c. 314, entitled "An Act Making Appropriations
for the Construction, Repair, and Preservation of Certain Public
Works on Rivers and Harbors, and for Other Purposes;" and the Act
of June 4, 1897, 30 Stat. 11, 44, c. 2, entitled
"An Act Making Appropriations for Sundry Civil Expenses of the
government for the Fiscal Year Ending June Thirtieth, Eighteen
Hundred and Ninety-Eight, and for Other Purposes."
The status of Captain Carter was not changed by his detail to
the charge of these improvements, and he was still subject to the
military jurisdiction.
It is further argued that the specification was wrongly laid
under article 62, because "the money was applied to a purpose
prescribed by law," and "the crime charged
was not to the
prejudice of good order and military discipline,'" but the
contention is without merit.
The fact that the vouchers purported to be issued as against the
appropriations for the improvement of the Savannah River and of
Cumberland Sound, if these vouchers were false and falsely
certified to, and if the accounts on which the moneys were paid
were false,
"the moneys not being due or owing from the United States to the
parties paid, or to any one else, and he, the said Captain Carter,
well knowing this to be the case,"
as stated in the specification, could not make the application
of the money by that payment an application to a purpose prescribed
by law.
We should suppose the embezzlement would be detrimental to the
service within the intent and meaning of the article, but it is
enough that it was peculiarly for the court-martial to determine
whether the crime charged was "to the prejudice of good order and
military discipline."
Swaim v. United States, 165 U.
S. 553;
Smith v. Whitney, 116
U. S. 178;
United States v. Fletcher,
148 U. S. 84.
In
Swaim v. United States, which involved a sentence
under the 62d article of war, MR. JUSTICE SHIRAS, delivering the
opinion, said:
"But, as the authorities heretofore cited show, this is the
Page 183 U. S. 401
very matter that falls within the province of courts-martial,
and in respect of which their conclusions cannot be controlled or
reviewed by the civil courts. As was said in
Smith v.
Whitney, 116 U. S. 178,"
"of questions not depending upon the construction of the
statutes, but upon unwritten military law or usage, within the
jurisdiction of courts-martial, military or naval officers, from
their training and experience in the service, are more competent
judges than the courts of common law. . . . Under every system of
military law for the government of either land or naval forces, the
jurisdiction of courts-martial extends to the trial and punishment
of acts of military or naval officers which tend to bring disgrace
and reproach upon the service of which they are members, whether
those acts are done in the performance of military duties, or in a
civil position, or in a social relation, or in a private
business."
The case has been argued with zeal and ability, and it has
received the consideration which its importance demanded. If these
observations have been extended beyond what was strictly required,
that should at least serve to show that no material suggestion
bearing on the disposal of this appeal has escaped attention.
But we must not be understood by anything we have said as
intending in the slightest degree to impair the salutary rule that
the sentences of courts-martial, when affirmed by the military
tribunal of last resort, cannot be revised by the civil courts save
only when void because of an absolute want of power, and not merely
voidable because of the defective exercise of power possessed.
Order affirmed.
MR. JUSTICE HARLAN did not hear the argument, and took no part
in the consideration and disposition of the case.
