Bishop v. United States, 197 U.S. 334 (1905)

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Bishop v. United States

No. 92

Argued March 23, 1905
Decided April 3, 1905
197 U.S. 334

APPEAL FROM THE COURT OF CLAIMS

Syllabus

An officer in the Navy failing to report at the time ordered, while his vessel was in Japanese waters, in 1865, was placed under arrest for drunkenness and neglect of duty; later on the same day, he was, by order of the rear admiral, restored to duty to await an opportunity to investigate the case. Subsequently the rear admiral convened a court martial consisting of seven officers, all of equal or superior rank to accused, who was served with charges and arrested, arraigned, and tried, found guilty, and dismissed. Accused stated he had no objections to any of the court and knew of no reason why it should not proceed with his trial. Subsequently, in a suit for salary on ground of illegal dismissal, he claimed the first arrest was an expiation of the offense and a bar; that the court was invalid and incompetent and the sentence invalid not having been approved by the rear admiral or the President. Held that:

Par. 1205, Naval Regulations of 1865, providing that the arrest and discharge of a person in the Navy for an offense shall be a bar to further martial proceedings against him for that offense, does not apply to an arrest and temporary confinement not intended as a punishment, but as a reasonable precaution for the maintenance of good order and discipline aboard.

Under Article 38 of the law of April 23, 1800, 2 Stat. 50, and Par. 1202, Naval Regulations of 1865, the provision as to service of charges upon the accused at the time that he is put under arrest refers not to the temporary arrest necessary for order and discipline at the time of the commission of the offense, but to the subsequent arrest for trial by court martial.

It is a question for the officer convening the court to determine whether more officers could be convened without injury to the service, and his action in this respect cannot be attacked collaterally, and if the accused expresses satisfaction with the court martial as constituted, it is a clear waiver of any objection to its personnel.

Under Articles 19 and 20 of the Act of July 17, 1862, 12 Stat. 605, the rear admiral convening the court martial was not obliged to confirm the sentence of dismissal.

The approval by the President sufficiently appears where the record shows that the sentence was submitted to the President and his approval appears at the foot of a brief in the case and the Secretary of the Navy writes to the accused that the President has approved the sentence.

This is a petition for pay as a lieutenant commander from February 8, 1868, when defendant was dismissed from the naval service pursuant to the sentence of a general court-martial, until March 9, 1871, when he was reinstated by special act of Congress. The Court of Claims made a finding of facts, the material parts of which are incorporated in the opinion, and dismissed the petition. 38 Ct.Cl. 473.