In re Cross — 11 Abb. N. Cas. 230

Majority

p. 230

MATTER OF CROSS.

N. Y. Supreme Court, First District; Special Term,

June, 1882.

Headnote

Habeas Corpus and Certiorari to Inquire into Detention, under Warrant oe Court Martial.—Military Code.—Warning to Attend Drills.—Notice oe Hearing.—Issuing oe Warrant.

Where personal service of a summons to attend a court-martial is made pursuant to section 199 of the Military Code (L. 1870, c. 80, amended L. 1880, c. 547), the five days’ notice prescribed in section 142 is unnecessary, that provision only applying to cases where charges and specifications are served, or where the service is by mail.

p. 231

Nor is' it necessary in such case to give the warning provided by sections 135-138.

The warrant for the collection of the fine may be issued within fifteen . days after the expiration of the time to appeal.—i. e., twenty days after publication of the order approving the fine (§§ 214, 202).

Proceedings upon a writ of habeas corpus issued upon the relation of Charles F. Cross to James Bowe, warden of the county jail of the county of New York, and upon a writ of certiorari in aid thereof, directed to George A. Miller, as president of a court-martial, &c.

The relator was imprisoned under the authority of a warrant issued by the respondent, George A. Miller, as president of the court-martial of the Twenty-second regiment, N. G. S. N. Y.

He procured a writ of habeas corpus directed to the warden of the county jail.

The warrant of commitment was returned to the writ, and the point made by counsel for respondent, that the warrant, being regular upon its face, the proceedings of the court-martial could not be reviewed under the writ of habeas corpus. The point was sustained by the court and the writ dismissed, but with leave to the relator to procure a certiorari in aid of the habeas corpus. The writ of certiorari was thereupon issued, and upon its return the respondent, the president of the court-martial, certified in full the proceedings of his court.

The relator thereupon moved his discharge upon the grounds that the summons had not been served on him five days prior to the hearing of his case by the court-martial, that no evidence was shown that he had been properly warned to attend the drills and parades for absence from which he was fined, and that the warrant was not issued within the time prescribed by law.

Henry L. Williams, for relator.

George A. Miller, for respondent.

I think that the counsel for the respondent is correct in the position that the present case is one in which the service was made upon the petitioner, under the provisions of section 199 of the Military Code, and that as the service was personal, the alleged delinquent was not entitled to five days’ notice that the court-martial would be convened for the trial of his case. Neither do I think that it is incumbent upon the respondents, in order to sustain the jurisdiction of the court-martial, to show that the petitioner was warned, as provided by sections 135, 136, 137 and 138 of the Military Code. I think that the court acquired jurisdiction when the summons against him, as a delinquent or party accused, was personally served upon him, and he was thus notified to appear and confront his accusers. The provision in reference to five days’ notice only applies to cases where charges and specifications are served or where the service is by mail (see sections 199, 196 and 142 of the Code).

In reference to the remaining question I deem it sufficient to say that it appears upon the face of the return that after the adjournment of the court the record ‘was delivered to Colonel Porter, the officer ordering the court, who, upon May 6, 1882, published an order approving the same, which was within less than fifteen days after such delivery. This gave the petitioner until May 26 within which to appeal. Such appeal was not, however, taken (Code, § 202).

Under section 214: “The president of the court shall, within fifteen days after the expiration of the time in which an appeal is allowed, as provided in section 202 of this act (fines or penalties having been ap proved), make a list of all the persons fined, describing - them distinctly, and showing the sums imposed as tines or penalities on each person, and shall draw his warrant, &c.” As this warrant was issued on June 7, and as, under the- terms of the preceding section, the presi

p. 233

dent of the court had until June 10 within which to issue the warrant, I think that his proceedings in that respect have been entirely regular.

On the whole case I fail to discover any defect in the jurisdiction of the court, and the writ must, therefore, be dismissed and the prisoner remanded.