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Ann. Cas. 1913E, 940; Ex parte Beck, 245 Fed. 967; Hamilton v. McClaughry, 136 Fed. 448; Ex parte Watkins, 3 Pet. 204, 7 L. ed. 653; 2 Cyc. p. 696.

Was the place of confinement properly designated?

Manual for Courts-Martial, §§ 400, 401, p. 190; Ops. J. A. G. 1917, p. 26; Ops. J. A. G. 1912, III-B-1, pp. 491, 492; Manual 394, p. 189; Appendices 10, 11. Manual pp. 372, 376; Digest J. A. G. 126,2; Davis, Military Law, pp. 537, 538, 551, note; Digest Ops. J. A. G. 1912-1917, 8, 466.

Was the case properly referred to the President?

Ops. J. A. G. Dec. 8, 1917; Winthrop, Military Law, 1899, 35; Re Bonner, 151 U. S. 257, 258, 38 L. ed. 151-153, 14 Sup. Ct. Rep. 323.

Solicitor General Frierson and Mr. R. P. Frierson submitted the cause for appellee:

The court-martial having jurisdiction of the person accused and of the offense charged, and having acted within the scope of its lawful powers, its decision and sentence cannot be reviewed or set aside by civil courts by writ of habeas corpus or otherwise.

Johnson v. Sayre, 158 U. S. 109, 39 L. ed. 914, 15 Sup. Ct. Rep. 773.

A writ of habeas corpus cannot be made to perform the functions of a writ of error. To warrant the discharge of the petitioner, the sentence under which he is held must be not merely er. roneous and voidable, but absolutely

void.

Ex parte Reed, 100 U. S. 13, 25 L. ed. 538.

The camp commander was fully authorized by law to appoint the courtmartial.

Caha v. United States, 152 U. S. 211, 222, 38 L. ed. 415, 419, 14 Sup. Ct. Rep. 513; United States v. Grimaud, 220 U. S. 506, 55 L. ed. 563, 31 Sup. Ct. Rep. 480; United States v. Symonds, 120 U. S. 46, 30 L. ed. 557, 7 Sup. Ct. Rep. 411.

Mr. Chief Justice White delivered the

opinion of the court:

In his return to a writ of habeas corpus which was allowed on the petition of appellant, averring that he was restrained of his liberty in violation of his constitutional rights, the warden of the penitentiary at Atlanta, asserting the lawfulness of his custody of the petitioner, annexed as part of his return the following documents:

(1) A copy of General Orders No. 56, issued by the President on June 13, 1918, conferring upon the commanders of designated camps, among them Camp Sevier, South Carolina, the authority to convene a general court-martial.

(2) General Court-martial Orders No. 139, issued by the War Department under date of April 29, 1919, announcing that, under Special Orders No. 172, dated "October 10, 1918, Headquarters, Camp Sevier, South Carolina" (issued by the commanding officer of that camp), a general court-martial had convened at Camp Sevier on October 30, 1918, and before it there was arraigned and tried "Captain William J. Givens, Infantry, United States Army," under the charge of having murdered at or near Camp Sevier a named private soldier; that at the trial. the accused officer had pleaded not guilty, and, although acquitted of the charge of murder, had been found guilty of manslaughter, and had been sentenced to dismissal from the Army and to ten years at hard labor at a place to be designated by the reviewing authority. The order [17] further recited the approval of the sentence by the reviewing authority (the commander at Camp Sevier), and a like approval, with direction that the sentence be executed, made by the President on April 14, 1919, and concluded by anThe penitentiary at Atlanta was prop-nouncing the dismissal of the convicted erly designated by the reviewing au- officer from the Army as of the date of thority, in accordance with the usual April 30, 1919. practice in such cases.

The question as to whether September 28, 1919, when the crime was committed, was in a time of peace, is immaterial. Dynes v. Hoover, 20 How. 65, 77, 15 L. ed. 838, 843.

The courts take judicial notice of the dates of the commencement and termination of any war in which the country

is involved.

United States v. Anderson, 9 Wall. 56, 19 L. ed. 615; Sutton v. Tiller, 6 Coldw. 593, 98 Am. Dec. 471; Ogden v. Lund,

11 Tex. 688.

United States v. Page, 137 U. S. 673, 680, 34 L. ed. 828, 831, 11 Sup. Ct. Rep. 219; United States v. Fletcher, 148 U. S. 84, 89, 37 L. ed. 378, 380, 13 Sup. Ct. Rep. 552.

(3) A telegram from the War Department to the commander at Camp Sevier, announcing the approval of the sentence by the President; the dismissal of the officer from the Army; that the United States penitentiary at Atlanta, Georgia,

1920.

GIVENS v. ZERBST.

was designated as the place of confine- embrace the commanding officer at Camp
ment, and directing the said commander Sevier; that, in issuing Order No. 56,
to deliver the officer to that penitentiary. the President therefore exceeded the pow-
(4) A letter from the Adjutant Gen- er conferred upon him, and hence that
eral of the Army, of date April 29, 1919, Order No. 56, in so far as it gave the
directed to the warden of the penitentiary power stated to camp commanders, was
at Atlanta, transmitting him a copy of void. But the text of Article 8 so clearly
the telegram sent to the commanding demonstrates the unsoundness of the con-
And as General
officer at Camp Sevier, as previously tention that we deem it unnecessary to
stated, and informing him that, in due refer further to it.
a copy of the official order Orders No. 56 was a part of the law of
season,
promulgating the trial, conviction, and the land, which we judicially notice with-
approval of the sentence would be sent out averment of proof (Gratiot v. United
States, 4 How. 80, 117, 11 L. ed. 884,
to him.
901; Jenkins v. Collard, 145 U. S. 547,
560, 36 L. ed. 812, 817, 12 Sup. Ct. Rep.
868; Caha v. United States, 152 U. S.
211, 221, 38 L. ed. 415, 419, 14 Sup. Ct.
Rep. 513), we think the contention that
that law should not have been enforced,
because it was not referred to by the
camp commander in exerting the power
which he possessed in virtue of that order,
is also without merit.

Upon a traverse of the return and the pleadings the case was heard, and in a careful opinion the court, maintaining the sufficiency of the return, discharged the writ and remanded the petitioner to custody, and, as the result of an appeal, the correctness of its action is here for decision.

The grounds relied upon for reversal relate to three subjects: (1) The alleged illegality of the court because of want of power in the officer by whom it was called to convene it; (2) the failure of the record to show that the accused was an officer in the Army, or was in any way amenable to trial by court-martial, and the absence of jurisdiction in the court, in any event, to try a charge of murder, because by law no person could be tried by courtmartial for murder committed within the United [18] States in time of peace, and there was no averment negativing a time of peace, and that in fact peace prevailed at the time of the trial; (3) the asserted unlawfulness of the confinement of the petitioner in the penitentiary at Atlanta because the record failed to establish that that place had been designated by the President, the final reviewing authority.

[19] These conclusions render no longer applicable the contention that the court-martial was without jurisdiction because a special court, appointed by a camp commander, had no jurisdiction to try an officer with the rank of captain, but they do not dispose of the proposition that the record failed to show that the accused belonged to the Army, without reference to his rank, and was therefore subject to trial by a military court.

Conceding that the possession by the accused of a status essential to the exercise by the court-martial of its power was jurisdictional, and therefore may not be held to have existed merely because of an estoppel, and conceding further that, except for the form of the charge, the record failed to establish such status, we are brought to deterinine, as was the lower court, whether evidence was admissible to show such capacity at the time of the trial and conviction, and thus make clear the precise condition upon which the court acted.

We come to test these grounds in the order stated. The court was undoubtedly a general court-martial and was convened by the commander of Camp Sevier. The power to convoke it, however, is not to Undoubtedly courts-martial are tribube solely measured by the authority possessed by a camp commander, but in the nals of special and limited jurisdiction light of the authority given to the Presi- whose judgments, so far as questions redent by the 8th Article of War, to em-lating to their jurisdiction are concerned, power "the commanding officer of any are always open to collateral attack. True, district or of any force or body of troops" also, is it, that, in consequence of the to appoint general courts-martial, and by the exertion of that power by the President, manifested by General Orders No. 56, conferring upon the commanding of ficer at Camp Sevier the authority to call a general court-martial. True, it is insisted that the words, "the commanding officer of any district or of any force or body of troops," are not broad enough to

limited nature of the power of such courts, the right to have exerted their jurisdiction, when called in question by collateral attack, will be held not to have existed unless it appears that the grounds which were necessary to justify the exertion of the assailed authority existed at the time of its exertion, and therefore were should have been a part of the record.

or

479

Wise v. Withers, 3 Cranch, 331, 2 L. ed., 457; Ex parte Watkins, 3 Pet. 209, 7 L. ed. 655; Dynes v. Hoover, 20 How. 65, 15 L. ed. 838; Runkle v. United States, 122 U. S. 543, 555, 30 L. ed. 1167, 1170, 7 Sup. Ct. Rep. 1141; McClaughry v. Deming, 186 U. S. 49, 62, 63, 46 L. ed. 1049, 1055, 22 Sup. Ct. Rep. 786.

The question before us is thus a narrow one, since it comes only to this: In a case such as that before us, where the power to convoke a court-martial is established [20] on the face of the record, and the authority of the court to decide the particular subject before it is therefore undoubted, does the right exist, in the event of a collateral attack upon the judgment rendered, made on the ground that a particular jurisdictional fact upon which the court acted is not shown by the record to have been established, to meet such attack by proof as to the existence of the fact which the court treated as adequately present for the purpose of the power exerted?

as the case is [21] here on appeal, the evidence upon which the court below acted is open for our consideration and would seem to be in the record, although a compliance with the præcipe of the appellant would have required the clerk to exclude it. Under these conditions we content ourselves with saying that, if, as a consequence of the action of the appellant, the proof is not in the record, the means of examining the conclusion of the court in that respect would be wanting, and we could not disturb the decree appealed from. If, on the other hand, the documents in the record, not referred to by the præcipe of the appellant, embraced the proof which the court admitted and upon which it acted, we are of opinion that they abundantly sustain the conclusion which the court based upon them, and therefore make clear the existence at the time of the trial of a military status in the accused officer adequate to sustain the jurisdiction of the court-martial. Considering that subject in the light. The contention that the court was withstated, we think the court below was right out jurisdiction because the trial occurred in admitting, as it did, evidence to show in a time of peace, and that, under that the existence of a military status in the condition, Article of War 92 deprived accused, since it did not change the court-courts-martial of jurisdiction to try for martial record, but simply met the col-murder, has been held to be without merit lateral attack by showing that, at the in Kahn v. Anderson, No. 421, this day time of the trial, the basis existed for the exertion by the court of the authority conferred upon it.

It is true that general expressions will be found in some of the reported cases to the effect that wherever a fact upon which the jurisdiction of a court-martial or other court of limited jurisdiction depends is questioned, it must appear in the record that such fact was established. But these expressions should be limited in accordance with the ruling which we now make. We so conclude because the complete right to collaterally assail the existence of every fact which was essential to the exercise by such a limited court of its authority, whether appearing on the face of the record or not, is wholly incompatible with the conception that, when a collateral attack is made, the face of the record is conclusive. Indeed, some of the leading cases make clear the incongruity of any other conclusion, and serve to indicate that the expressions as to the face of the record contemplate, not the record assailed by the collateral attack, but the record established as the result of the proof heard on such attack. Galpin v. Page, 18 Wall. 350, 21 L. ed. 959; Runkle v. United States, 122 U. S. 543, 30 L. ed. 1167, 7 Sup. Ct. Rep. 1141.

Although there is no bill of exceptions,

decided (255 U. S. 1, ante, 469, 41 Sup.
Ct. Rep. 224), which therefore disposes of
that question as presented here. This
renders it unnecessary to consider the
government's insistence that, as the con-
viction was for manslaughter, the trial
was for that crime, although the charge
was murder.

As respects the designation of the peni-
tentiary at Atlanta as the place for
executing the sentence at hard labor which
was imposed, we are of opinion that, if
effect be given to documents which are
in the record, and to which the lower
court referred, it would clearly result that
the court rightly held that, under the
conditions disclosed, the order for con-
finement at Atlanta was virtually the
order of the President, and the contention
to the contrary now made is devoid of
merit. United States v. [22] Page, 137
U. S. 673, 678-682, 34 L. ed. 828, 830-832,
11 Sup. Ct. Rep. 219; United States v.
Fletcher, 148 U. S. 84, 88-91, 37 L. ed.
378, 380, 13 Sup. Ct. Rep. 552; Ide v.
United States, 150 U. S. 517, 37 L. ed.
1166, 14 Sup. Ct. Rep. 188; Bishop v.
United States, 197 U. S. 334, 341, 342,
49 L. ed. 780, 783, 784, 25 Sup. Ct. Rep.
440. But, as pointed out by the court
below, the mere designation of the place
for carrying out the sentence did not

1

involve the jurisdiction of the court, before whom the action or proceeding is to (Schwab v. Berggren, 143 U. S. 442, 451, be tried or heard has a personal bias or 36 L. ed. 218, 224, 12 Sup. Ct. Rep. 525; prejudice either against him or in favor of Re Cross, 146 U. S. 271, 277, 278, 36 any opposite party to the suit, such judge shall proceed no further therein, but anL. ed. 969, 972, 13 Sup. Ct. Rep. 109), other judge shall be designated to hear the and, if erroneous, would only lead to matter, that every such affidavit shall state retaining the accused for a new designa- the facts and the reasons for the belief that tion of place of confinement, and we see such bias or prejudice exists, that no party no reason, under the condition of the shall be entitled in any case to file more record, to reverse the action of the court than one such affidavit, and that no such affidavit shall be filed unless accompanied below on that subject. by a certificate of counsel that such affidavit and application are made in good faith. [For other cases, see Judges, III. in Digest Sup. Ct. 1908.]

What we have said disposes of every material contention in the case, although we have not expressly noticed the many suggestions based upon the supposed duty on the trial before the court-martial, to negative every possible condition the existence of which might have prevented that court from trying the case, among which was the possibility that the officer under trial might have belonged to a command which did not come within the power to call a court-martial conferred upon the camp commander by General Orders No. 56; particularly since the suggestion now made on that subject seems to have been an afterthought, and not to have been called to the attention of the court below in any way. Affirmed.

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Judges disqualification
bias or prejudice
effect of affidavit.

1. The filing of an affidavit of personal bias or prejudice of the judge who is to preside at the trial, conformably to the Judicial Code, § 21, leaves such judge no duty other than to pass upon the legal sufficiency of the affidavit (subject to appellate review) to show the objectionable inclination or disposition, and, if legally sufficient, compels his retirement from the case without passing upon the truth or falsity of the facts affirmed, the section declaring that whenever a party to any action or proceeding, civil or criminal, shall make and file an affidavit that the judge

Note. On constitutionality of statute making mere filing of affidavit of bias or prejudice sufficient to disqualify judge-see note to Diehl v. Crump, 5 A.L.R. 1275.

On prohibition to prevent prejudiced judge from proceeding with case-see State ex rel. McAllister v. Slate, 8 A.L.R. 1238.

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belief satisfies the provisions of the Judicial 2. An affidavit upon information and Code, § 21, that whenever a party to any action or proceeding, civil or criminal, shall make and file an affidavit that the judge before whom the action or proceeding is to be tried or heard has a personal bias or prejudice either against him or in favor judge shall proceed no further therein, but of any opposite party to the suit, such another judge shall be designated to hear such matter, and that every such affidavit shall state the facts and the reasons for the belief that such bias or prejudice exists. [For other cases, see Judges, III. in Digest Sup. Ct. 1908.]

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disqualification

bias or prejudice
effect of affidavit.

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personal sufficiency and

3. An affidavit by defendants charged with violating the Espionage Act of June 15, 1917, which avers upon information and belief that the Federal district judge before whom they are to be tried has a personal bias or prejudice against them because of the German nativity of some of such defendants, and that the grounds for such belief are certain hostile and derogatory utterances of such judge concerning the attitude of German-Americans during the progress of the World War, and which is accompanied by a certificate of defendants' counsel that the affidavit is made in good faith, satisfies the requirements of the Judicial Code, § 21, that whenever a party to any action or proceeding, civil or criminal, shall make and file an affidavit that the judge before whom the action or proceeding is to be tried or heard has a personal bias or prejudice either against him or in favor of any opposite party to the suit, such judge shall proceed no further therein. but another judge shall be designated to hear the matter, that every such affidavit shall state the facts and the reasons for the belief that such bias or prejudice exists, that no party shall be entitled in any case to file more than one such affidavit, and that no such affidavit shall be filed unless accompanied by a certificate of counsel that such affidavit and application are made in good faith; and the filing of such affidavit neces

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N A CERTIFICATE from the United O`States Circuit Court of Appeals for

the Seventh Circuit presenting questions as to the sufficiency and effect of an affidavit of personal bias or prejudice of the Federal District Judge who is to preside at a criminal trial. Answered by holding that the affidavit is sufficient, that the judge could pass upon its legal sufficiency, but not upon the truth or falsity of the facts affirmed, and that he was without lawful right or authority to try the defendants.

The facts are stated in the opinion. Mr. Seymour Stedman argued the cause and filed a brief for Victor L. Berger et al.:

Procedure relating to change of the place of trial should be liberally construed and a substantial compliance with its terms is sufficient.

Buck v. Eureka, 97 Cal. 135, 31 Pac.

845.

As a rule, statutes conferring a right to a change of venue or removal should be construed liberally, and, if possible, so as not to defeat the right.

16 C. J. 203; Packwood v. State, 24 Or. 261, 33 Pac. 674; State v. Sasse, 72 Wis. 3, 38 N. W. 343; Fajardo v. Soto Nussa, 23 P. R. R. 71.

All of the defendants joined in the application, and this conforms to the narrow requirement of statutes and authorities which hold that all coplaintiffs and codefendants must join in the application or petition.

Henry v. Speer, 120 C. C. A. 207, 201 Fed. 869; 40 Cyc. 146; Knickerbocker Ins. Co. v. Tolman, 80 Ill. 106; Griffin v. Leslie, 20 Md. 15; Dowling v. Gerard B. Allen & Co. 88 Mo. 293.

The trial judge is relieved from the delicate and trying duty of deciding upon the question of his own qualification. Ibid.

Mr. Henry F. Cochems also argued the cause for Victor L. Berger et al.

Solicitor General Frierson argued the cause and filed a brief for the United States:

When a judge holds that an affidavit of prejudice is not filed in time, or

is insufficient in law, or, for any reason, overrules the application and continues to proceed in the case, his action in so doing is subject to review, and, if improper, to reversal by an appellate court; but unless his acts are so reviewed and reversed, they are not void.

Glasgow v. Moyer, 225 U. S. 420, 56 L. ed. 1147, 32 Sup. Ct. Rep. 753; Ex S. 35, 45, 57 L. ed. 1379, 1384, 33 Sup. parte American Steel Barrel Co. 230 U. Ct. Rep. 1007.

The basis of the disqualification is that personal bias or prejudice exists, by reason of which the judge is unable to impartially exercise his functions in the particular case. It is a provision obviously not applicable save in those rare instances in which the affiant is able to state facts which tend to show not merely adverse rulings already made, which may be right or wrong, but facts and reasons which tend to show personal bias or prejudice. It was never intended to enable a discontented litigant to oust a judge because of adverse rulings made, for such rulings are reviewable other. wise, but to prevent his future action in the pending cause. Neither was it intended to paralyze the action of a judge who has heard the case, or a question in it, by the interposition of a motion to disqualify him between a hearing and a determination of the matter. heard. This is the plain meaning of the requirement that the affidavit shall be filed not less than ten days before the beginning of the term.

Ex parte American Steel Barrel Co. supra.

If the affidavit does not aver personal bias or prejudice, or does not state facts which tend in any way to show such personal bias or prejudice, although they may show a prejudgment of the case and a consequent prejudice against the rights sought to be asserted, the statute has not been complied with, and the judge may rightfully disregard the affidavit.

Henry v. Speer, 120 C. C. A. 207, 201 Fed. 869.

The mere filing of an affidavit of prejudice, under § 21, does not disqualify a judge where the facts stated of themselves show, as a matter of law, that no prejudice exists.

Ex parte N. K. Fairbank Co. 194 Fed. 978.

The mere filing of the petition does not automatically remove the judge, but he has some judicial function to discharge in passing upon the application. Ex parte Glasgow, 195 Fed. 780.

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