State Ex Rel. v. Mills

The petition for writ of prohibition filed by the state in this case was denied by this court in an opinion rendered November 14, 1945, 82 Okla. Crim. 155, 163 P.2d 558.

A motion for rehearing has been filed by the Attorney General, and our attention called to the fact that while the petition was under consideration, and on October 30, 1945, the Attorney General filed a reply brief with the clerk of the Criminal Court of Appeals. This brief was not delivered to the court prior to the consideration of the case. We have now examined that brief, and the petition for rehearing with brief attached, and the reply brief filed by the respondent.

It is strongly contended that the court erred in the opinion heretofore rendered. We have again carefully considered the facts in this case.

The cases cited by the state which it is claimed sustain its contention are: Moore v. People of Illinois, 14 How. 13,55 U.S. 13, 14 L. Ed. 306; Fox v. State, 5 How. 410, 432, 12 L. Ed. 213; United States v. Marigold, 9 How. 560, 13 L. Ed. 257; People v. Eklof, 179 Misc. 536, 41 N.Y.S.2d 557; Hebert v. State of Louisiana, 272 U.S. 312, 47 S. Ct. 103, 71 L. Ed. 270, 48 A. L. R. 1102; Jerome v. United States,318 U.S. 101, 63 S. Ct. 483, 87 L. Ed. 640; State v. Rankin, 44 Tenn. 145, 146; Ex parte Tobias Watkins, 3 Pet. 193, 28 U.S. 193, 7 L. Ed. 650; Wise v. Withers, 3 Cranch 331, 2 L. Ed. 457; Ver Mehren v. Sirmyer, Commandant, etc., 8 Cir., 36 F.2d 876; McClaughry v. Deming, 186 U.S. 49, 22 S. Ct. 786, 46 L. Ed. 1049; and In re Bogart, U.S., 3 Fed. Cas. page 796, No. 1,596.

We have carefully read each of these cases. It would unduly lengthen this opinion on rehearing to refer to each of them. In many of the cases the question of trial by court-martial was not involved, and only slight reference is made to the question here under consideration. Many of the cases cited arose during the time of the Civil War. The statutes and the Articles of War have been amended and changed since they were first written, and the facts involved in a majority of the cases are different from the facts in the case at bar. Many of the cases are based upon the fact that two crimes were committed by the same act, one against the United States, and one against the state, as stated in the original opinion in this case, and for this reason a prosecution by both the civil and military authorities was permissible. In a number of the cases cited, it was held that a concurrent jurisdiction existed between the civil and military authorities, and that the one first assuming jurisdiction would be respected by the other.

Many of the cases are based upon the decision of the case of United States v. Lanza, 260 U.S. 377, 43 S. Ct. 141, 67 L. Ed. 314, to which reference is made in the case of LaForge v. State, 28 Okla. Crim. 37, 228 P. 1111, decided by this court, and in which it is held that by reason of 21 O. S. 1941 § 25 the rule announced in the Lanza case does not apply in this state. This distinction is recognized in the note to 48 A. L. R. page 1108, where the LaForge Case is cited and quoted.

In the case of Griffin v. State, 57 Okla. Crim. 176,46 P.2d 382, 386, this court, after quoting the above statute, says:

"Our statute above quoted (21 O. S. 1941 § 25) is susceptible of but one construction. And a conviction in a federal court for the same act as charged in a prosecution in a state court is a conviction under the laws of another 'government' within the meaning of the statute; and by virtue of the statute alone such conviction is a complete defense to a prosecution for the same act or omission in the courts of this state."

It will also be noted that none of the states from which the cases cited by the state are taken have a statute like that in force in Oklahoma.

Counsel for the state has referred in his brief to the case of People v. Spitzer, 148 Misc. 97, 98, 266 N.Y.S. 522, 528, to which reference is made in the original opinion. Attention is called to the terms of the New York statute, and the statute is set out in the state's brief. We have examined the same, and under its terms the decision in that case is squarely against the contention made by the state in the instant case. It is in harmony with the ruling in the Oklahoma case of LaForge v. State, supra, cited in the original opinion. The court, in that opinion, says:

"The right of a defendant to be tried only once for the same offense has long been recognized and cautiously guarded by the common law among all English-speaking nations, and has been restated and preserved to us by our Constitution, as well as by various statutes; and the rule that safeguards this ancient and important right should not be so attenuated and hedged about by technicality and refinement as to render its application difficult, or its security uncertain. The defendants participated in but a single transaction, and the acts for which they are indicted here are precisely and exclusively the facts upon which they were convicted and sentenced in the federal court. It is the spirit and purpose of the laws of New York that for the same acts and upon the same evidence a defendant shall not be twice put in jeopardy. The former conviction in the federal court is a bar to a further prosecution of the indictment here."

The state also cites the case of People v. Eklof, 179 Misc. 536,41 N.Y.S.2d 557, 558, and quotes the first, second and third paragraphs of the syllabus. The reading of the case reveals that it is squarely against the contention of the state. It is in harmony with the decision of the New York courts in holding that where the offenses are "identical in law and in fact," a conviction in the federal court is a bar to a prosecution in the state court. A distinction is made between the decisions in the state and federal courts. In the body of the opinion it is said:

"It is also provided in section 139 of the Code of Criminal Procedure: 'When an act charged as a crime is within the jurisdiction of another state, territory or country, as well as within the jurisdiction of this state, a conviction or acquittal thereof in the former, is a bar to a prosecution or indictment therefor in this state.'

"Section 33 of the Penal Law provides that when an offense is committed in a foreign jurisdiction under circumstances under which the courts of this State have jurisdiction, and the defendant has already been acquitted or convicted on the merits upon a criminal prosecution under the laws of such State or country, such former acquittal or conviction is a sufficient defense.

"The motion to dismiss the indictment on the ground of double jeopardy is therefore granted."

An examination of section 33 of the Penal Laws reveals that the word "government" appears therein, but it does not in any way change the meaning of the statute, as above stated.

The strongest case presented by the state in its brief on motion for rehearing in support of its contention, is that of State v. Rankin, 44 Tenn. 145, 146. We had read and considered this case prior to writing the original opinion. In that case the defendant stood charged in the Circuit Court of Jefferson county, Tennessee, with murder, committed on June 1, 1865. He was a lieutenant in Company B, Ninth Tennessee Cavalry, and as such in the military service of the United States, and subject to the jurisdiction of the military courts and general courts-martial established by the laws of the United States. He was charged in the military court with the crime of murder, being the same charge filed against him in the Circuit Court of Tennessee, and tried by a general court-martial, and found "not guilty." He pleaded this action as a bar to his prosecution in the Circuit Court of Jefferson county. The Circuit Court sustained his plea of former jeopardy, and the state appealed to the Supreme Court of Tennessee. The Supreme Court reversed the judgment of the Circuit Court, holding that the defendant could be tried under the laws of the state, notwithstanding the trial and acquittal by the general court-martial.

Granting that this decision is in accord with the contention of the state here, we call attention to the fact that Tennessee had no such statute as Oklahoma, 21 O. S. 1941 § 25, upon which the decision in this case was based.

The Tennessee case is predicated upon the early decisions of the United States Supreme Court heretofore cited. As pointed out, these cases were not court-martial cases, and in most instances were based upon the distinction that the defendant was charged with two distinct crimes, one against the state or civil authorities, and one against the military authorities.

The court cites and discusses the case of Capt. Howe ("Military Law Courts-Marital," by Bennett, pp. 100-102). In that case Capt. Howe was charged in the court-martial proceedings with "conduct prejudicial to good order and military discipline" in committing certain acts, which caused the death of another. An attempt was made to prosecute him in the civil courts of Florida upon the charge of murder, and the military court sustained the plea that the defendant could not be prosecuted in the court-martial proceedings, as the State of Florida had sole jurisdiction. The commanding general disapproved this decision, but suspended all proceedings pending a decision in the civil court. Upon the defendant being found not guilty in the civil court, the military tribunal was re-assembled on May 10, 1942, seven months later, and the defendant pleaded his former acquittal in the state court as a bar to his prosecution in the military court. The plea was denied and the defendant was convicted by the general court-martial, "and sentenced to be suspended from rank, pay and emoluments, for twelve calendar months." This action was based upon the proposition that the defendant had violated both the laws of Tennessee and the military laws. In the comments of the Attorney General, it is said: "Assault and battery and homicide, are violations of the municipal laws of the place where committed to be tried and punished by the proper tribunal of the State or Territory where peace is broken and laws offended. But the same act being done by an officer or soldier of the army of the United States, over and above the breach of the local law, is a breach also of the law of the United States, in violation of the rules and articles for the government of the armies of the United States."

It is thus seen that the same distinction is made of the two crimes, the one against the civil and the one against the military authorities, as stated in this and the original opinion. Nowhere is it intimated, as contended by the state, that the prosecution by a court-martial of the military authorities is not a criminal prosecution.

Finally, the State cites the case of McClaughry v. Deming, supra. This was a case where Peter C. Deming, a Captain in the "voluntary" army of the United States, was tried by a general court-martial at San Francisco. The court-martial was wholly composed of officers selected from the "regular army." He was tried, convicted, and sentenced to serve a term of three years in the Federal prison at Leavenworth, Kansas, and given other punishments. He filed a petition for writ of habeas corpus to be released on the grounds that he was convicted by a court-martial that did not have jurisdiction of the person or subject matter, by reason of the 77th Article of War, section 1342 of the Revised Statutes of the United States, which was as follows: "Officers of the Regular Army shall not be competent to sit on courts-marital to try the officers or soldiers of other forces, except as provided in Article 78."

Article 78 was held to have no application.

The Circuit Court of Appeals for the Eighth Circuit upheld this contention (113 F. 639), and this decision was affirmed by the Supreme Court. This case was cited and quoted from to sustain the contention that a court-martial is a court of "special and limited jurisdiction;" that it is called for a special purpose, and to perform a particular duty. When the object of its creation has been accomplished, it is dissolved. The court so holds.

It is interesting to note that Justice Peckham, in the course of the opinion, discusses fully the question of "jurisdiction" of courts-martial. And while he comes to the conclusion that the court-martial in that case did not have jurisdiction of the person or the subject matter, by reason of the fact that the plain words of the statute prohibited the members of the "Regular Army" from sitting on a court-martial of members or officers of the "voluntary army," he clearly recognizes the legality and finality of the judgments of those courts where they have jurisdiction of the person and subject matter, as are the facts in the instant case. He says [186 U.S. 49, 22 S. Ct. 794]:

"In order to give effect to the judgment of a court of that nature it must appear affirmatively that the court was legally constituted; that it had jurisdiction, and that all the statutory requirements governing its proceedings had been complied with. * * *

"The question we are now discussing resolves itself into one of jurisdiction simply. If the court-martial had jurisdiction over the subject- matter of the charge against the defendant and of the person, or if the consent of the defendant gave such jurisdiction, the writ of habeas corpus will afford no relief, for, generally, in such case any error committed by a court-martial regularly organized and with full jurisdiction is not assailable before the civil courts. Swain v. United States,165 U.S. 553, 17 S. Ct. 448, 41 L. Ed. 823; Carter v. McClaughry,183 U.S. 365, 22 S. Ct. 181, 46 L. Ed. 236."

None of the requirements above mentioned were questioned in this case. The court-martial was legally constituted, and all the requirements of the Federal statute had been complied with. A charge had been made against the defendant which the Federal statute authorized. There could be no doubt as to the question of the court-martial having jurisdiction. By this, as originally stated, we do not intend to say that the state would not have concurrent jurisdiction, and if they had exercised it as they had the right to do, a different question would be presented. But in permitting the military authorities to take charge of the defendant, and prefer against him identical charges which he stands charged in the state court, thus waiving their right, it would seem unreasonable to hold that he can now be proceeded against after a trial and acquittal by a "court-martial" that had jurisdiction of the person and subject matter. And this is certainly true when 21 O. S. 1941 § 25 is considered.

The case of In re Bogart, supra, is cited in the reply brief of the state. We do not know why it was cited. Only a short statement of Attorney General Cushing is quoted therefrom. We shall not unduly lengthen this opinion by reviewing the case in full. It is squarely against every contention of the state upon the question of the jurisdiction of court-martial, and squarely against the statement that a trial by court-martial is not a criminal prosecution, as contended by the State. It sets out and discusses the eighth section of the first Article of the Constitution of the United States, which provides for Congress to have the right "to make rules for the government of the land and naval forces," and considers this section in connection with other sections of the Constitution, and, quoting from the case of Dynes v. Hoover, 20 How. 65, 78, 61 U.S. 65, 15 L. Ed. 838 says:

" 'These provisions show that Congress has the power to provide for the trial and punishment of military and naval offenses, in the manner then and now practiced by civilized nations; and that the power to do so is given without any connection between it and the third article of the constitution, defining the judicial power of the United States; indeed, that the two powers are entirely independent of each other.' 20 How. [78], 61 U.S. 78, 79 [15 L. Ed. 838].

"Again, in the same case, it is said: 'With the sentences of courts-martial, which have been regularly convened, and have proceeded legally, and by which punishments are directed, not forbidden by law, or which are according to the laws of the sea, civil courts have nothing to do. If it were otherwise, the civil courts would virtually administer the rules and articles of war irrespective of those to whom that duty and obligation has been confided by the laws of the United States, from whose decisions no appeal of any kind has been given to the civil magistrates or civil courts.' "

The court quotes with approval from Ex parte Milligan, 4 Wall. 2, 71 U.S. 2, 123, 18 L. Ed. 281, which is cited and quoted in the original opinion. Near the end of the opinion, it is said:

"The liability of the navy department, and of its courts-martial, to abuse their powers in cases like this, has been strenuously urged in various stages of the hearing against the views and construction of the constitution and statutes adopted by us. Similar arguments have often been urged before in courts of justice, in cases involving analogous questions. The answer often repeated in the books is well stated by Mr. Justice Story, in Ex parte Kearney, 7 Wheat. [38], 20 U.S. 45 [5 L. Ed. 391]. That eminent jurist says: 'Wherever power is lodged it may be abused. But this furnishes no solid objection against its exercise. Confidence must be reposed somewhere, and if there should be any abuse it will be a public grievance, for which a remedy may be applied by legislation, but it is not to be devised by courts of justice.'

"The same constitution and the same legislative power which conferred civil jurisdiction on the national judiciary, also conferred jurisdiction over military and naval offenses upon courts-martial, appointed and supervised by the war and navy departments. Each is supreme while acting within the sphere of its own exclusive jurisdiction. In the terse and appropriate language of Attorney-General Cushing: 'A court-martial is a lawful tribunal, existing by the same authority that any other exists by, and the law, military, is a branch of law as valid as any other, and it differs from the general law of the land in authority only in this, that it applies to officers and soldiers of the army, but not to other members of the body politics, and that it is limited to breaches of military duty'. 6 Op. Atty. Gen. 425.

"This court has no more right to assume or suppose that those who, by the constitution and laws, are made the depositaries of jurisdiction over military offenses, will abuse these powers, than that those who, by the same constitution and laws, are entrusted with the general civil jurisdiction of the land, will abuse the trust devolved upon them. It is, undoubtedly, the imperative duty, and we have no doubt that it will be the pleasure, of the judiciary to jealously and vigorously maintain its own jurisdiction in its utmost extent, for the protection of the citizen in all his rights of person and property; and to confine within their proper limits the special and limited jurisdiction of other tribunals. But, while this is so, it is no less its duty to abstain from trespassing upon, or usurping the rightful powers of any other tribunal, however limited may be the sphere of its jurisdiction. A breach of this latter duty would be no less reprehensible than a breach of the former."

This case in no uncertain terms holds that a court-martial is a "lawful tribunal," and is as "valid" as any other. That it has the same power and authority as civil tribunals, the only difference being that it exercises the right over officers and soldiers of the army, and not civilians. That the same Constitution and legislative power created both the civil and military courts. Can it be successfully contended that a court-martial is not a criminal proceeding, under the above statements, when applied to cases coming within the jurisdiction of military tribunals? We think not. We have read no decisions to the contrary. The procedure of the state may not be followed as provided by the statute of the state, but the punishment to be inflicted under the Articles of War is the same as provided by the statutes of this state, 12 Stat. chap. 75, p. 731.

While it may not come within the purview of judicial knowledge to be considered by the court, we have personally known of courts-martial trials that lasted for weeks and months. Members of the military forces have been tried for major offenses. Able counsel have represented both the military authorities and the defendants. Large sums of money have been spent by the government and by the defendants in prosecuting and defending these cases. A verdict is returned either of guilty or not guilty. Can it be said that it would be just and right that a defendant who has thus confronted such a trial when found not guilty be immediately charged in a state court and again be forced to undergo the expense and hardship of a second trial in the state court for the same identical offense with which he has been acquitted? It just seems that such was not the intention of the makers of the law when they wrote that provision of the Constitution of this state which says, "nor shall any person be twice put in jeopardy of life or liberty for the same offense." Article 2, § 21.

We feel certain that 21 O. S. 1941 § 25 was adopted or enacted for the purpose of protecting this right; that the word "government" therein should and does include military government, and that trial and acquittal of one by the military court constitutes a bar to his prosecution in the state court for the same offense.

For the reasons stated the petition for rehearing is denied.

JONES, P. J., and DOYLE, J., concur.