tracts, dated October 8, 1896, to furnish the [370]United States certain mattresses, *stone, and other material, of specified kinds and qualities, for constructing works in said river and harbor district, to furnish and put into said works mattresses, stone, and other material different from, inferior to, cheaper, and of less value to the United States than those contracted for; and by receiving and accepting and paying for the same as of the kinds and qualities contracted for, and by falsely certifying to the correctness of the said vouchers, well knowing that the mattresses, stone, and other material charged for in said vouchers as having been furnished had not in fact been furnished; each of the said claims having been made in or about the month named in the above description of the voucher relating to it." Specification VII.-In that the accused caused to be entered on a government pay roll the names of sundry persons as laborers, and caused to be paid to them certain sums for services as laborers, whereas none of such persons had rendered services as laborers, and the accused knew such claims were false and fraudulent. each of the. said payments having been Specification III.-For making a false Specification IV.-For falsely entering on the pay roll the names of certain persons as laborers to an amount of $29.50. Specification V.-For falsely certifying as correct an account of the Atlantic Contracting Company for $121.60. Specification VI.-For falsely certifying as correct an account of the Atlantic Contracting Company for $384. Specification VII.-For falsely certifying as correct an account of the Atlantic Contracting Company for $108.80. Specification IX.-For indorsing a certain false statement on a letter from the chief of engineers as to rentals on property proSpecification VIII. For fraudulently al-posed to be acquired by the United States lowing an account of $121.60 of the Atlantic at Savannah. Contracting Company against the United States, for piling in repairing the Garden Bank training wall. Specification IX.-For fraudulently allowing an account of $384 to the Atlantic Contracting Company for pile work. Specification XI.-For failing to account for the sum of $132.10, money of the United States, received by the accused from Alfred Hirt. Specification XXII.-For making false reports as to his absence from his station. Specification X.-For fraudulently al- Charge IV.-"Embezzlement, as defined lowing an amount of $108.80 to the Atlan-in § 5488, Revised Statutes of the United tic Contracting Company for pile dams. Charge III.-"Conduct unbecoming an of ficer and a gentleman, in violation of the 61st article of war." States, in violation of the 62d, article of *Specification I.-"In that Captain Ober-[372] lin M. Carter, Corps of Engineers, United Specification II.-"In that Captain Ober- States Army, being the officer in charge for lin M. Carter, Corps of Engineers, United the United States of river and harbor imStates Army, being the officer in local charge provements in the Savannah river and harfor the United States of river and harbor im- bor district, and, as such officer, in charge provements in the Savannah river and har- of said improvements, being a disbursing ofbor district, did wilfully and knowingly ficer of the United States, and having incause the following amounts to be paid out trusted to him large amounts of public of the moneys of the United States subject money of the United States, did wilfully to his order and control as officer in charge and knowingly apply for a purpose not auof said improvements, to the Atlantic Con-thorized by law large sums of the said montracting Company, a corporation; the accounts on which the same were paid being false, and the amounts paid not being due cr owing from the United States to the said [371]company, or to any *one, and he, the said Captain Carter, well knowing this to be the case; the said accounts and amounts paid and the payments being those designated by the following voucher (and the entries there in and indorsements thereon) submitted by the said Captain Carter with his accounts, and marked 'Appropriation for improving harbor at Savannah, Georgia;' "Voucher No. 8, $230,749.90, July, 1897; and the one indicated and designated by the following voucher (and the entries therein and indorsements thereon) submitted by the said Captain Carter with his accounts, and marked 'Appropriation for improving Cumberland sound, Georgia and Florida;' "Voucher No. 9, $345,000, July, 1897; eys so intrusted to him, by wilfully and mitted by the said Captain Carter with his | *imposed by the court-martial upon the de-[374] accounts, and marked 'Appropriation for fendant Oberlin M. Carter, is hereby apimproving Cumberland sound, Georgia and proved. Elihu Root, Secretary of War. Executive Mansion, Washington, D. C., September 29, 1899. William McKinley. By direction of the Secretary of War Cap- H. C. Corbin, Adjutant General. Florida:' Voucher No. 9 ($345,000.00), July, 1897; each of the said payments having been caused to be made on or about July 6. 1897, by the said Captain Carter drawing and delivering a check as such officer in charge of river and harbor improvements, by which the payment was ordered and directed to be made out of moneys of the Unit-tain Oberlin M. Carter, Corps of Engineers, ed States under his control as such officer." The court-martial found the accused guilty of the second specification under Charge I., "except the words 'and other material,' and interpolating the word 'and' between the words 'mattresses' and 'stone' wherever those words occur in the specification, of the excepted words not guilty, and of the interpolated word guilty;" and guilty [373] of the charge; guilty of the *sixth specification under Charge II., "except of the words 'and other material' where they occur the second and third time, and interpolating the word 'and' between the words 'mattresses' and 'stone' where they occur the second and third time; of the excepted words not guilty; of the interpolated word guilty;" guilty of the seventh, eighth, ninth, and tenth specifications, and guilty of the charge; guilty of the second, third, fourth, sixth, seventh, ninth, eleventh, and twenty second specifications under Charge III. of the fifth specification, "except of the words "the articles have been,' and of the excepted words not guilty;" and not guilty of the eighth, tenth, twelfth, and twenty-third specifications; and guilty of the charge; guilty of the 1st specification under Charge IV., and guilty of the charge. The general order then set forth the sentence and subsequent action as follows: Sentence. And the court does therefore sentence the accused, Captain Oberlin M. Carter, Corps of Engineers, United States Army, "to be dismissed from the service of the United States, to suffer a fine of $5,000, to be confined at hard labor at such place as the proper authority may direct for five years, and the crime, punishment, name, and place of abode of the accused to be published in the newspapers in and about the station and in the state from which the accused came, or where he usually resides." The petition averred that said Carter, in pursuance of the sentence, had been dismissed from the Army of the United States, and the order of dismissal served upon him; that the crime, punishment, name, and place of abode of said Carter had been published in the newspapers in and about his station and in and about the state whence he came and where he usually resided; and that said Carter had paid to the United States the fine of $5,000 imposed by the sentence. And that said Carter, "having been cashiered the army, having suffered degradation, and having paid the fine imposed, as above set forth, his imprisonment and detention are contrary to law, are in violation of the Constitution of the United States, and are illegal and without warrant of law, for the following reasons, that is to say:" First. That there was no evidence deliv- Second. That the finding of said Carter Charge II. Specifications seven, eight, Charge III. tain contracts for the improvement of Sav- able by a court-martial under that article, but if justiciable at all by the court-martial, were justiciable under the 60th article of war. seven, nine, eleven, and twenty-two thereunder; Third. That the imprisonment and detention were illegal and contrary to article 102 prohibiting a second trial for the same offense, and contrary to the 5th Amendment to the Constitution of the United States in this: (a) That it appeared from the charges and specifications, and also from the evidence, that the payment of the two checks drawn by Carter, and described in each of the specifications under which he was convicted, were the only basis of each of the four charges, and that the single acting out of several distinct and disconnected of drawing the two checks had been carved up into four distinct and different crimes, and a punishment assessed on each; (b) That the sentence was beyond the powers of the court-martial and void, for that under the 60th article of war the court-martial was authorized to inflict the punishment of a fine or imprisonment, or such other punishment as it might adjudge; (c) That under the 61st article of war, the violation of which was laid in Charge III., the courtmartial had jurisdiction to inflict the judgment of dismissal from the army only; (d) That the facts set out in the specifications under Charges I., II., and IV., respectively, brought the offense therein described under the 60th article of war, under which the [376]court-martial *had jurisdiction only to in-court was affirmed by the United States cir transactions, *said several offenses charged [377] not being of the same class of crimes. flict a fine or an imprisonment or some other punishment, in the alternative, and not cumulatively. Fourth. That the punishment of,fine and imprisonment were and each of them was beyond the power of the court-martial to inflict. because the same were imposed after Carter had ceased to be an officer of the Army of the United States, and after he had ceased to be subject to the jurisdiction of the court-martial. Fifth. That the punishment of imprisonment was beyond the powers of the courtmartial and void in this: That under and by virtue of an act of Congress approved September 27, 1890, the President, by an order dated March 20, 1895, fixed the maximum punishment for a violation, by an enlisted man in the Army of the United States, of the 60th article of war, and for the violation by such person of the 62d article of war, by embezzlement of more than $100, at a term of four years' confinement at hard labor, under each article; and that thereafter, on October 31, 1895 (prior to these proceedings), the President, in accordance with the act of Congress, prescribed that said maximum limit should extend to all such violations, whether by officers or enlisted men of the army. Sixth. That the sentence was wholly void in this "That said court-martial found the said Captain Carter guilty of Charge I. and of specification two thereunder; of Charge II. and specifications six, seven, eight, nine, and ten thereunder; of Charge III. and specifications two, three, four, five, six, seven, 183 U. S. U. S., Book 46. "That the sentence thus confirmed by the said President of the United States was not the sentence of said court-martial, and was not in mitigation or commutation of such sentence, but was for the offenses of which said Carter was finally determined to be guilty, in excess of the sentence imposed by said court-martial." The petition further alleged that October 2, 1899, said Carter, by Abram J. Rose, applied to the United States circuit court for the southern district of New York for a writ of habeas corpus, which writ was on October 20, 1899, dismissed; that on January 24, 1900, the decision of the circuit cuit court of appeals for the second circuit; that thereafter the petitioner last named prosecuted a writ of error to the circuit court and a certiorari out of the Supreme Court of the United States, but the Supreme Court dismissed the appeal and writ of error. Copies of the opinions in each of these courts were attached. Petitioner further averred that this application was made on the same evidence as in the application to the circuit court for the southern district of New York, to wit, the evidence adduced before the court-martial. By amendment a further allegation was added to the petition to the effect that on December 9, 1899, said Carter and Benjamin D. Green and others were indicted in the United States circuit court for the southern district of Georgia for a conspiracy to defraud the United States, a copy of which indictment was attached; "that said indictment was based on the same facts as set out in the charges and specifications, for the conviction of which by said court-martial said Carter is now undergoing imprisonment,-that is to say, Charge I., specification two, Charge II., specification six, Charge III., specification two, and Charge IV., specification one, as set out in the petition filed herein,-and that said indictment was found after the circuit court of the United States for the southern district of New York had denied the application for a writ of habeas corpus on October 20, 1899.” *The respondent, the warden of the Unit-[378] ed States penitentiary at Fort Leavenworth, Kansas, returned to the writ that he had Oberlin M. Carter in custody, as such war16 241 den, and detained him by direction of the guilt or innocence of the part, Secretary of War, the said Carter being un- and this case presented no exception justider sentence of a general court-martial, sen-fying departure from this rule, as General tenced to be imprisoned at said penitentiary Orders No. 172 afforded all the information for five years, and that Carter was now in necessary to dispose of the case. The record of the circuit court shows that custody as aforesaid, undergoing said sentence of imprisonment; that the warden was the matter came on to be heard on November acting in the capacity of custodian of said 23, 1900, on petitioner's "oral motion to disCarter, in virtue of General Orders No. 172 charge the, said Oberlin M. Carter, based upof September 29, 1899, a duly authenticated on the averments of respondent's return, no copy of which was filed as part of the re-evidence having been offered or considered turn; and the respondent contended that by the court." On December 10, 1900, it said Carter had been lawfully convicted and was ordered by the court "that the writ of sentenced by the said general court-martial, habeas corpus herein be discharged; and it which had jurisdiction of the person of said is further ordered that the said Oberlin M. Carter, and of the various offenses for which Carter be remanded to the custody of Robhe was tried. ert W. McClaughry, warden of the United States penitentiary at Fort Leavenworth, Kansas." The opinion of the court was de livered by Hook, J., in which Thayer, Circuit Judge, concurred. 105 Fed. 614. Respondent further set forth the proceedings by habeas corpus in the southern district of New York, during the pendency of which the said Carter paid the fine imposed, and averred that on hearing the circuit court This appeal was then prosecuted, and erdismissed the writ, and Carter was remand-rors duly assigned. Errors were also specied to custody (Re Carter, 97 Fed. 496); fied in appellant's brief, in substance as folthat thereafter the cause was carried to the lows: circuit court of appeals for the second circuit, and that court affirmed the final order of the circuit court. 40 C. C. A. 199, 99 Fed. 948. That on February 5, 1900, a petition for certiorari was submitted to the Su-ey was applied to a purpose prescribed by preme Court of the United States, which on February 26, 1900, was denied. Carter v. Roberts, 176 U. S. 684, 44 L. ed. 638, 20 Sup. Ct. Rep. 1026. That, on the same day the application for certiorari was denied, an appeal was taken to the Supreme Court, and a writ of error sued out, to review the order of the circuit court in dismissing the habeas corpus and remanding the said Carter; and that thereafter the Supreme Court, on April 23, 1900, dismissed said appeal and writ of error for want of jurisdiction. Carter v. Roberts, 177 U. S. 496, 44 L. ed. 861, 20 Sup. Ct. Rep. 713. That on the mandate issuing from the Supreme Court April 24, 1900, to the circuit court, the circuit court, on April 25, 1900, entered judgment, and remanded Carter to the custody from which he was produced, for the purpose of having the sentence executed. Duly authenticated transcripts of these various proceedings and copies of accompanying briefs were made parts of the return. 1. That the finding of "guilty” under Charge IV. and its specification was void, inasmuch as the specification was wrongly laid under article 62, because (a) the mon law; (b) and the crime charged was not [379]*That in accordance with the sentence Car- 2. The finding under article 62 being void, that the sentence is in violation of the 5th Amendment of the Constitution, because it was greater than could be imposed for any alleged crime taken singly, and there were only two separate crimes charged, viz., conspiracy and paying fraudulent claims, while there were three several penalties imposed, viz., dismissal, fine, and imprisonment. Dismissal and fine had been discharged, and the third, imprisonment, is illegal. 3. That the entire sentence is illegal and void because, the President having disapproved the conviction as to certain offenses, and having ordered the original sentence to stand, such sentence ceased to be the sentence of the court-martial. 4. The imprisonment is illegal because inflicted after Carter ceased to be an officer of the army. 5. The sentence of imprisonment is void because in excess of the maximum allowed by law. 6. The court-martial had no jurisdiction to try Carter, "because it stands admitted that no evidence whatever was adduced tend Respondent objected in conclusion to the Mr. Frank P. Blair argued the cause, and, with Mr. Jere M. Wilson, filed a brief for appellant: Moneys appropriated for river and harbor improvements, and confined to the control of the war department, are, in the contemplation of Congress, "furnished or intended for the military service." 183 U. S. Wisconsin v. Duluth, 96 U. S. 379, 24 L. ed. 668; South Carolina v. Georgia, 93 U. S. 4, 23 L. ed. 782. The accused was performing the very duties expressly enjoined upon him as an officer in the military service. Saxon jurisdiction, it is high time it should This court in habeas corpus will examine the evidence or pleadings to determine the identity of the offense for which petitioner claims he is being twice punished. United States v. Tyler, 105 U. S. 244, 26 The duty of an engineer officer on public work is a military duty, because such duty is under the military establishment. Dig. Op. J. A. G. 67, par. 12. A soldier is on military duty when he is employed in the military service of the United States. He can be employed to discharge civil functions only when express authority is given by some act of Congress. Dig. Op. J. A. G. 118, par. 9; Runkle v. United States, 122 U. S. 543, 30 L. ed. 1167, 7 Sup. Ct. Rep. 1141. The special statutory embezzlements defined in U. S. Rev. Stat. §§ 5488, 5491, and 5492, though in terms made the subject of trial and punishment by the United States civil tribunals, are, when committed by military disbursing officers, properly taken cognizance of by courts-martial under the 60th article of war. Winthrop, Military Law, 2d ed. p. 1097. The 62d article of war was intended as a dragnet wherewith to catch all offenders whose acts could not properly be laid under some other specific article, provided such acts were subversive of military discipline. 2 Winthrop, Military Law, 2d ed. p. 118. It is the rule of our military law, knowing no exception, that if any offense can properly be laid under some other specific article it must not be laid under the general or 62d article. 2 Winthrop, Military Law, p. 1126; Benet, Military Law, p. 53; Dig. Op. J. A. G. (Winthrop), p. 146; Re Carter, 97 Fed. 496. The jurisdiction of courts-martial is confined to the punishment of military persons for strictly military offenses. Nor can Congress confer jurisdiction upon courtsmartial for the trial of civil offenses. Ex parte Henderson, Fed. Cas. No. 6,349. The argument ab inconvenienti is not without force in this connection. It is alleged in the petition, and not traversed, that petitioner has been indicted by a Federal grand jury for the same offense set out under Charge I. As the authorities now stand he cannot plead autrefois convict, when he shall be arraigned in the United States district court in Georgia. Re Esmond, 5 Mackey, 64; United States v. Cashiel, 1 Hughes, 552, Fed. Cas. No. 14,744; Пowe's Case, 6 Ops. Atty. Gen. 506; United States v. Maney, 61 Fed. 140. Such a situation is abhorrent to the mind of the American lawyer; it is contrary to the genius of our institutions; and if such a principle has crept into our Anglo Re Nielsen, 131 U. S. 176, 33 L. ed. 118, Under a statute precisely similar to the 60th article of war it has been held error to inflict cumulative punishment, and the error may be reached by habeas corpus proceedings. Ex parte Lange, 18 Wall. 163, 21 L. ed. 872. While the legislature may pronounce as many combinations of things as it pleases as criminal, resulting not infrequently in a plurality of crimes in one transaction, or even in one act, for any of which there may be a conviction without regard to the others, it is a fundamental rule of law that out of the same facts a series of charges shall not be preferred. 1 Bishop, New Crim. Law, par. 1060; Reg. v. Elrington, 9 Cox C. C. 86. If two indictments set out like offenses and relate to one transaction, yet if one contains more of criminal charge than the other, but upon either there would be a conviction for what is embraced in the other, the offenses, though of different names, are, within our constitutional guaranty, the same. Fox v. State, 50 Ark. 528, 8 S. W. 836; State v. Cooper, 13 N. J. L. 361, 25 Am. Dec. 490; 1 Chitty, Crim. Law, 455. The offenses are the same whenever evidence adequate to the one indictment will equally sustain the other. United States v. Lee, 4 Cranch, C. C. 446, Fed. Cas. No. 15,586; United States v. Miner, 11 Blatchf. 511, Fed. Cas. No. 15,780; Holt v. State, 38 Ga. 187; State v. Cameron, 3 Heisk. 78; State v. James, 63 Mo. 570; Wright v. State, 17 Tex. App. 152; Re Nielsen, 131 U. S. 176, 33 L. ed. 118, 9 Sup. Ct. Rep. 672. See also Re Snow, 120 U. S. 274, 30 L. ed. 658, 7 Sup. Ct. Rep. 556; United States v. Chouteau, 102 U. S. 603, 26 L. ed. 246; Coffey v. United States, 116 U. S. 436, 29 L. ed. 684, 6 Sup. Ct. Rep. 437. A several or collective sentence assessed on all counts after finding of a several verdict of guilty on good and bad counts alike cannot be unheld. State v. Dooly, 64 Mo. 146; Wood v. People, 59 N. Y. 117; Bishop, Crim. Proc. par. 1015; State v. Hinckley, 4 Minn. 345, Gil. 261; Wharton, Crim. Pl. & Pr. par. 771. The punishments by fine and imprisonment were, each of them, illegal and void, because inflicted after Captain Carter had ceased to be an officer of the army, and had passed beyond the jurisdiction of a court-martial. 1 Winthrop, Military Law, 2d ed. p. 116; 5 Ops. Atty. Gen. 735. See also Steiner's Case, 8 Ops. Atty. Gen. 328; Ex parte Henderson, Fed. Cas. No. 6,349. |