Petitioner has cited no authority which supports the proposition that the civilian prosecution of a soldier for conduct amounting to a civilian, albeit service-related, offense denies the latter the due process of law. In Caldwell v. Parker, 1920, 252 U.S. 376, 40 S.Ct. 388, 64 L.Ed. 621, the Court held that the jurisdiction to try and punish for a crime is not vested exclusively in a military court but is concurrent with the civilian tribunal having jurisdiction over the locus criminis. O'Callahan, supra, does not disturb this rule of law, and it is certainly of continuing validity.
If it be suggested that these are matters which do not affect the jurisdiction of the Commission or the validity of the proceedings, but are merely questions which may be raised on appeal or review, the answer is that the Order deprived the petitioners of such appeal or review. Citing Ex parte Milligan, 4 Wall. 2; Sterling v. Constantin, 287 U.S. 378; Caldwell v. Parker, 252 U.S. 376; Kahn v. Anderson, 255 U.S. 1; Home Building Loan Assn. v. Blaisdell, 290 U.S. 398; Carter v. Carter Coal Co., 298 U.S. 330; 55 Harvard L. Rev. 1295; 31 Ops. A.G. 363.Attorney General Biddle, with whom Judge Advocate General Myron C. Cramer, Assistant Solicitor General Cox, and Col. Erwin M. Treusch were on the brief, for respondent.
Hamilton v. Kentucky Distilleries Co., 251 U.S. 146. It is therefore difficult to appreciate the reasoning upon which it is insisted that, although the Government of the United States was officially at war, nevertheless, so far as the regulation and control by it of its army is concerned, it was at peace. Nor is it any less difficult to understand why reliance to sustain that proposition is placed on Caldwell v. Parker, 252 U.S. 376, since that case involved no question of the want of jurisdiction of a court-martial over a crime committed by a soldier, but solely whether the jurisdiction which it was conceded such a court possessed was intended to be exclusive of a concurrent power in the state court to punish the same act, as the mere result of a declaration of war and without reference to any interruption, by a condition of war, of the power of the civil courts to perform their duty; and moreover in that case the question here raised was expressly reserved from decision. Coming now to consider that question in the light (1) of the rulings in Ex parte Milligan, 4 Wall. 2; Coleman v. Tennessee, 97 U.S. 509; Ex parte Mason, 105 U.S. 696, and Caldwell v. Parker, 252 U.S. 376; (2) of the differences between the Articles of 1874 and those of 1916 showing a purpose to rearrange the jurisdiction of courts-martial; (3) of the omission of the qualification, "except in time of war," from the clauses of the latter artic
These rulings are in strict accord with the powers of the Congress and the President under the Constitution. United States Constitution, Article I, Sec. 8, Clauses 1, 10, 11, 12, 13, 14, 18; Article 2, Sec. 1, Cl. 1; Article 2, Sec. 3, Cl. 1; and see Ex parte Quirin, 1942, 317 U.S. 1, 25-27, 63 S.Ct. 2, 87 L.Ed. 3; see Article of War 2, 10 U.S.C.A. § 1473; Article 15, 10 U.S.C.A. § 1486; Article 74, 10 U.S.C.A. § 1546; Article 92, 10 U.S.C.A. § 1564; Article 93, 10 U.S.C.A. § 1565; Article 94, 10 U.S.C.A. § 1566; and see the following cases, arranged chronologically, which have applied the principle both in peace and war time: Coleman v. Tennessee, 1878, 97 U.S. 509, 24 L.Ed. 1118; Ex parte Mason, 1881, 105 U.S. 696, 26 L.Ed. 1213; United States v. Clark, C.C.Mich. 1887, 31 F. 710; Neall v. United States, 9 Cir., 1902, 118 F. 699; Drury v. Lewis, 1906, 200 U.S. 1, 26 S.Ct. 229, 50 L.Ed. 343; Franklin v. United States, 1910, 216 U.S. 559, 30 S.Ct. 434, 54 L.Ed. 615; Caldwell v. Parker, 1920, 252 U.S. 376, 40 S.Ct. 388, 64 L.Ed. 621; People v. Denman, 1918, 179 Cal. 497, 177 P. 461; In re Koester, 1922, 56 Cal.App. 621, 624, 206 P. 116; United States v. Hirsch, D.C. 1918, 254 F. 109; United States v. McDonald, D.C.N.Y. 1920, 265 F. 754, 760; United States v. Matthews, D.C.Ala. 1943, 49 F. Supp. 203; and see, Billings v. Truesdell, 1944, 321 U.S. 542, 547, 64 S.Ct. 737, 88 L.Ed. 917; 36 Am.Jur., Military, § 96; Winthrop's Military Law, 1929, p. 671. About the only legal advantage that can be gained from courts martial lies in the fact that they are courts of limited jurisdiction and their judgments, even after they become final, may be attacked collaterally.
State courts do not lack authority to try soldiers in time of war for commission of crime. Coleman v. Tennessee, 97 U.S. 509, 24 L.Ed. 1118; Caldwell v. Parker, 252 U.S. 376, 40 S.Ct. 388, 64 L.Ed. 621; United States v. Hirsch, D.C., 254 F. 109; Castle v. Lewis, 8 Cir., 254 F. 917; In re Kelly, C.C.Wis., 71 F. 545; United States ex rel. Drury v. Lewis, C.C.Pa., 129 F. 823; Id., 200 U.S. 1, 26 S.Ct. 229, 50 L.Ed. 343; In re Koester, 56 Cal.App. 621, 206 P. 116. Provision of Articles of War for delivery to civil authorities of persons accused of crime, but subject to military law, except in time of war, is designed merely to modify the duties of the military authorities to surrender persons in military service charged with offenses against laws of the state, and the war time exception merely relieves military authorities of the duty to deliver accused persons to civil authorities.
Nevertheless, as a general rule, the jurisdiction of civil and military tribunals is concurrent, and not exclusive. ( Caldwell v. Parker, 252 U.S. 376, 385, 388.) "Undoubtedly the general rule is that the jurisdiction of civil courts is concurrent as to offenses triable before courts-martial."
This section of the Act of 1863 was enacted so as to place soldiers who committed certain nonmilitary crimes under the jurisdiction of military courts. See Caldwell v. Parker, 252 U.S. 376. The section did not relate to the jurisdiction of courts or commissions over civilians not in the military service.
Schmitt v. United States, 413 F.2d 219, 225 (5th Cir.), cert. denied, 396 U.S. 959, 90 S.Ct. 432, 24 L.Ed.2d 423 (1969); Kennedy v. Sanford, 166 F.2d 568, 569 (5th Cir.), cert. denied, 333 U.S. 864, 68 S.Ct. 737, 92 L.Ed. 1143 (1948). Accord, Caldwell v. Parker, 252 U.S. 376, 40 S.Ct. 388, 64 L.Ed. 621 (1920); Peek v. United States, 321 F.2d 934, 936, 937 (9th Cir. 1963), cert. denied, 376 U.S. 954, 84 S. Ct. 973, 11 L.Ed.2d 973 (1964). We think that O'Callahan did not change the concurrent jurisdiction rule, but only limited the crimes over which a military court could assert jurisdiction.
The contention has long since been considered and rejected and there can be no doubt that murder can be prosecuted within the field of military offenses when proper jurisdiction exists. Coleman v. State of Tennessee, 97 U.S. 509, 24 L.Ed. 1118; Lee v. Madigan, 358 U.S. 228, 79 S.Ct. 276, 3 L.Ed.2d 260; Caldwell v. Parker, 252 U.S. 376, 40 S.Ct. 388, 64 L.Ed. 621; Bennett v. Davis, 10 Cir., 267 F.2d 15. See also Johnson v. Sayre, 158 U.S. 109, 15 S.Ct. 773, 39 L.Ed. 914. Affirmed.
But even had Robinson at all times covered by each count of the indictment been in active military service and subject to court-martial such would in no wise have prevented his being indicted by the grand jury. See United States v. Canella, 9 Cir., 157 F.2d 470, affirming D.C., 63 F. Supp. 377; also Caldwell v. Parker, 252 U.S. 376, 40 S.Ct. 388, 64 L.Ed. 621. The sixth and last main contention of Robinson is that the acquittal of the conspiracy count made the convictions of the substantive counts void.