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GIVENS v. ZERBST

January 31, 1921

GIVENS
v.
ZERBST, WARDEN OF THE UNITED STATES PENITENTIARY AT ATLANTA, GA.



APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF GEORGIA

White, McKenna, Holmes, Day, Van Devanter, Pitney, McReynolds, Brandeis, Clarke

Author: White

[ 255 U.S. Page 16]

 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, S.C., 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, S.C.," (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

[ 255 U.S. Page 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 announcing the dismissal of the convicted officer from the Army as of the date of April 30, 1919.

(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, Ga., was designated as the place of confinement, and directing the said commander to deliver the officer to that penitentiary.

(4) A letter from the Adjutant General of the Army of date April 29, 1919, directed to the warden of the penitentiary at Atlanta, transmitting him a copy of the telegram sent to the commanding officer at Camp Sevier, as previously stated, and informing him that in due season a copy of the official order promulgating the trial, conviction and approval of the sentence would be sent to him.

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 ...


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