Frederick Owens, Jr., Petitioner-appellant, v. T. Wade Markley, Warden, Etc., Respondent-appellee, 289 F.2d 751 (7th Cir. 1961)

This is an appeal from an order of the District Court for the Southern District of Indiana, granting respondent's motion to dismiss a petition for a writ of habeas corpus which had been filed by petitioner.

This Court entered an order permitting petitioner to proceed on this appeal in forma pauperis. The printing of the record on appeal and the printing of appellant's brief were waived. Wilbur F. Dassel, Esq. of the Evansville, Indiana bar was appointed to represent the petitioner. Oral argument was waived on motion of appellant, consented to by respondent.

Petitioner alleged that on or about May 15, 1955, while serving with the Armed Forces of the United States of America, within the geographical limits of the United States, he was charged, tried and convicted by a military court-martial of a capital offense, to-wit: rape, in violation of Article 120, Uniform Code of Military Justice, 10 U.S.C. § 920, enacted May 5, 1950, and was sentenced to fifteen years imprisonment.

He alleged further that on May 15, 1955, the date of the capital offense, the United States of America was at peace, and not "in time of war or public danger" within the meaning of the Fifth Amendment to the Constitution of the United States. Petitioner argues the court-martial before which he was tried, was without constitutional or statutory jurisdiction to try and convict him of a capital offense. He also claims he was deprived of his constitutional rights of indictment by a grand jury and trial by jury accorded by the Fifth and Sixth Amendments to the United States Constitution.

As stated by petitioner's counsel, the issues before us on this appeal are whether: a) "The Fifth Amendment and the Uniform Code of Military Justice authorize a Courts (sic)-Martial to try, convict and sentence a member of the Armed Forces, other than Militia, in `time of peace' and not `in time of war or public danger.'" and b) "The Sixth Amendment and the Uniform Code of Military Justice authorize a Court s (sic)-Martial to try, convict and sentence a member of the Armed Forces, other than Militia, without `public trial, by an impartial jury', in `time of peace' and not `in time of war or public danger.'"

The pertinent parts of the amendments relied on by petitioner are:

Fifth Amendment: "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; * * *."

Sixth Amendment: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury * *."

Military tribunals are not governed by the procedure for trials prescribed in the Fifth and Sixth Amendments. Ex parte Quirin, 317 U.S. 1, 40, 63 S. Ct. 1, 87 L. Ed. 3. The Supreme Court there held that indictment by a grand jury and a trial by jury are not constitutional requirements for trials before military commissions.

In Whelchel v. McDonald, 340 U.S. 122, 71 S. Ct. 146, 95 L. Ed. 141, the petitioner was convicted of rape by a general court-martial. The Court there held that any error that may have been committed by the Military authorities in evaluating the evidence tendered is beyond the reach of review by the civil courts. The Court specifically held, 340 U.S. at page 127, 71 S. Ct. at page 149, "The right to trial by jury guaranteed by the Sixth Amendment is not applicable to trials by courts-martial or military commissions."

In Hackworth v. Taylor, 10 Cir., 283 F.2d 250, the Court held that a soldier convicted by court-martial of murder was not entitled to release upon a writ of habeas corpus on the ground he came within the protection of individual rights afforded by the Fifth Amendment to the Constitution.

Petitioner relies strongly on Lee v. Madigan, 358 U.S. 228, 79 S. Ct. 276, 3 L. Ed. 2d 260. This reliance is misplaced. The Lee case is clearly distinguishable.

Lee was charged under Article of War 92, 10 U.S.C. (1946 ed., Supp. IV) § 1564. This Article, prior to the adoption of the Uniform Code of Military Justice (64 Stat. 108, 10 U.S.C. § 801 et seq., enacted May 5, 1950), governed trials for murder and rape before courts-martial. Article of War 92, provided "* * * no person shall be tried by court-martial for murder or rape committed within the geographical limits of the States of the Union and the District of Columbia in time of peace." But the comparable section of the Uniform Code contains no such provision. Article 5, 10 U.S.C. § 805 provides that the code "applies in all places." As petitioner was tried pursuant to the Uniform Code of Military Justice, it is clear Lee v. Madigan has no application. Burns v. Taylor, 10 Cir., 274 F.2d 141, 143.

Petitioner's emphasis that on the date of the alleged offense our country was at peace and not in war or public danger, does not raise an issue. The Supreme Court long ago in Johnson v. Sayre, 158 U.S. 109, 115, 15 S. Ct. 773, 39 L. Ed. 914, held that the words relied on by petitioner applied only to the militia.

It might be advisable to remind all interested that those convicted by courts-martial are not without remedy. A good explanation of such rights is contained in Burns v. Wilson, 346 U.S. 137, 141, 73 S. Ct. 1045, 1048, 97 L. Ed. 1508, where the Court said:

"* * * The revised Articles, and their successor — the new Code — also establish a hierarchy within the military establishment to review the convictions of courts-martial, to ferret out irregularities in the trial, and to enforce the procedural safeguards which Congress determined to guarantee to those in the Nation's armed services. And finally Congress has provided a special post-conviction remedy within the military establishment, apart from ordinary appellate review, whereby one convicted by a court-martial, may attack collaterally the judgment under which he stands convicted.

"The military courts, like the state courts, have the same responsibilities as do the federal courts to protect a person from a violation of his constitutional rights."

We are indebted to Mr. Wilbur F. Dassel for his competent services in behalf of the petitioner on this appeal.

The District Court was correct in granting respondent's motion to dismiss the petition for a writ of habeas corpus. Said order is

Affirmed.