McClaughry v. Deming, 186 U.S. 49 (1902)
McClaughry v. Deming
No. 610
Argued April 28-29, 1902
Decided May 19, 1902
186 U.S. 49
APPEAL FROM THE CIRCUIT COURT
FOR THE DISTRICT OF KANSAS
Syllabus
The trial of an officer of volunteers by a court-martial, all the members of which were officers of the Regular Army, is illegal, and the objection to it could be taken on habeas corpus.
A petition for a writ of habeas corpus was presented to the circuit court of the United States for the District of Kansas, First Division, asking that Peter C. Deming, once a captain in the Subsistence Department of the Volunteer Army of the United States, might be produced by Robert W. McClaughry, the appellant herein, in whose custody Deming was placed, McClaughry being the warden of the United States prison at Fort Leavenworth, Kansas.
On the part of Deming, it was shown in the petition that he was imprisoned and restrained by virtue of a sentence imposed upon him by a general court-martial of the United States, convened at the Presidio of San Francisco, California, by William R. Shafter, Major General, United States Volunteers, and Brigadier General of the United States Army, retired, being of the age of sixty-four years. The sentence imposed upon Deming by the court-martial was that he should be dismissed from the service of the United States, and be confined in such penitentiary as the reviewing authority might direct for the period of three years, and that the crime, punishment, name, and place of abode of the accused should be published in the newspapers in and about the City of San Francisco, and in the state where the accused usually resided. The sentence was approved by the Secretary of War and affirmed by the President of the United States on June 8, 1900.
The petition further showed that the court-martial which imposed the sentence was convened by virtue of the following order:
Special Orders Headquarters Department of California
No. 65 San Francisco, Cal., March 29, 1900
7. A general court-martial is appointed to meet at the Presidio of San Francisco, California at 11 o’clock A.M., on Tuesday, the 3d proximo, or as soon thereafter as practicable, for the trial of Captain Peter C. Deming, assistant commissary of subsistence, U.S. Volunteers.
Detail for the court:
Colonel Jacob B. Rawles, 3rd Artillery
Lieutenant Colonel Richard I. Eskridge, 23rd Infantry
Major Louis H. Rucker, 6th Cavalry
Major Benjamin C. Lockwood, 21st Infantry
Captain Frank West, 6th Cavalry
Captain Carber Howland, 4th Infantry
Captain Sedgwick Pratt, 3rd Artillery
Captain Henry C. Danes, 3rd Artillery
Captain Charles A. Bennett, 3rd Artillery
Major Stephen W. Groesbeck, judge advocate, U.S. Army, judge advocate
[Seal]
The court is empowered to proceed with the business before it with any number of members present not less than the minimum prescribed by law, the above being the greatest number that can be convened without manifest injury to the service.
Such journeys as Colonel Rawles, Major Groesbeck, and Captain Pratt may be required to make between their respective stations and the Presidio of San Francisco, in attending the meetings of the court, are necessary for the public service.
By command of Major General Shafter:
J. B. Babcock
Assistant Adjutant General.
It was further shown in the petition that Deming was an officer in the Volunteer Army and forces of the United States, and that the members of the court-martial above named, and who tried him, were all officers in the Regular Army, and it was averred that he could not legally or lawfully be tried by a court-martial composed of such officers because it would be in direct violation of the 77th article of war, § 1342, Revised Statutes of the United States, which reads as follows:
Article 77. Officers of the Regular Army shall not be competent to sit on courts-martial to try the officers or soldiers of other forces, except as provided in article 78.
Article 78. Officers of the Marine Corps, detached for service with the Army by order the President, may be associated with officers of the Regular Army on courts-martial for the trial of offenders belonging to the Regular Army, or to forces of the Marine Corps so detached, and in such cases the orders of the senior officer of either corps, who may be present, and duly authorized, shall be obeyed.
It was further averred in the petition that Deming was tried and convicted without due process of law and in violation of the Fifth Amendment of the Constitution of the United States; that the court-martial was an illegal one and without warrant of law, and the sentence imposed upon Deming was without warrant or authority of law, illegal and void. A writ of habeas corpus was prayed for, to be directed to the warden, commanding him to have the body of Deming before the court. This petition was sworn to in behalf of Deming by the petitioner J. H. Atwood.
Upon that petition, the writ issued and the warden, in compliance therewith, produced Deming and made return to the writ in substance, as follows: that William R. Shafter was a major general of volunteers, exercising command of the Department of California, by virtue of an assignment of the President of the United States, as Commander-in-Chief of the Army; that, on March 29, 1900, pursuant to authority and in conformity with the provisions of article 72 of the articles of war, General Shafter appointed a general court-martial, by special orders, to meet at the Presidio of San Francisco on April 3, 1900, or as soon thereafter as practicable, for the trial of Peter C. Deming, Assistant Commissary of Subsistence, United States Volunteers, the detail of which court-martial was then stated, and which was the same as that already mentioned in the order convening the court. It was admitted that all the members of the court-martial so detailed were members of the Regular Army; that, on April 5, 1900, the court proceeded to the trial of Deming, who, being present in court, the order convening the court was read to him, and he was asked if he objected to being tried by any member present named in the order convening the court, to which he replied in the negative. The members of the court and the judge advocate were then duly sworn, the court adjourning to meet again on April 23, 1900, at which time all the members of the court were present, and the judge advocate and Deming, the accused, with counsel. The accused was then arraigned upon charges of embezzling public money of the United States in violation of the 60th article of war, and conduct unbecoming an officer and a gentleman in violation of the 61st article of war; that thereupon Deming pleaded guilty, and the court-martial then passed sentence upon him, which was set forth in the return, and has been already stated.
The return further stated that, on May 2, 1900, the proceedings, finding, and sentence of the court-martial were approved by Major-General Shafter and submitted for the action of the President pursuant to the provisions of article 106 of the articles of war, and that thereafter, on June 8, 1900, the sentence was confirmed by the President of the United States, and on that day, by direction of the Secretary of War, Deming ceased to be an officer of the Army of the United States, and the penitentiary at Fort Leavenworth, Kansas, was designated as the place for his confinement.
A certified copy of the record and proceedings of the court-martial duly authenticated under the laws of the United States, together with a copy of the order for the court-martial, the proceedings, findings, and sentence in the case, were attached to the return of the warden, and made a part of it.
The facts above detailed also appear in the record of the court-martial.
The petitioner demurred to the return as not stating facts sufficient to warrant the detention of the petitioner in custody, nor to warrant the refusal of the writ of habeas corpus, prayed for in the petition, and because such facts did not give the warden any legal right to deprive Deming of his liberty.
Although it does not appear distinctly in the record, yet it is conceded that, upon the argument before the district judge the writ was discharged and the prisoner remanded to the custody of the warden, and that, upon appeal to the circuit court of appeals that court reversed the order of the circuit court, and directed that the writ issue and that Deming be discharged from custody. Thereafter, in accordance with the judgment of the circuit court of appeals, Deming was discharged by the circuit court, and from the order of the court so discharging him the government has appealed to this Court.