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try, or political subdivision thereof, certified by the lawful custodian of such document, shall be admissible in evidence in any court of the United States when authenticated by a certificate of a consular officer of the United States resident in such foreign country, under the seal of his office, certifying that the copy of such foreign document has been certified by the lawful custodian thereof. Nothing contained in this section shall be deemed to alter, amend, or repeal section 907 of the Revised Statutes, as amended (U. S. C., title 28, sec. 689). Sec. 6, act of June 20, 1936 (49 Stat. 1563); 28 U. S. C. 695e.

The above provision, omitted from the original text of the Military Laws, is inserted as a new section.

757. Habeas corpus; power of courts.

Notes of Decisions

Courts-martial proceedings.-Appeal by relator from two orders of the district court dismissing petitions for writs of habeas corpus. Relator, a general prisoner at a United States penitentiary, had been convicted by a courtmartial of assault with intent to commit sodomy. He contended that he had not been accorded due process of law by reason of the facts that the court-martial heard the trial judge advocate in his absence (at a session at which no additional evidence was presented) and that the court reopened the case for additional evidence and then reconvened and completed its deliberations without receiving additional evidence. Orders affirmed. Held: The basic guarantee of fairness afforded by the due process clause of the Fifth Amendment applies to a defendant in criminal proceedings in a Federal military court as well as in a Federal civil court. It is open for a

civil court in a habeas corpus proceeding to consider whether the circumstances of a courtmartial proceeding and the manner in which it was conducted, ran afoul of the basic standard of fairness which is involved in the constitutional concept of due process of law and, if it so finds, to declare that the relator has been deprived of his liberty in violation of the Fifth Amendment and to discharge him from custody. The points complained of in the present case amounted at most to procedural irregularities for which no inquiry in habeas corpus proceedings has ever been available. Neither of these points violated the due process clause which guarantees that the distinctive procedure of military law will be applied to members of the military forces in a fundamentally fair way. U. S. ex rel., Innes v. Hiatt, (C. C. A. 3, 1944), 141 F. (2d) 664.

759. Habeas corpus; conditions for issue of writ.

Notes of Decisions

In general.-Petition for a writ of habeas corpus. A citizen of the United States residing in Hawaii was incarcerated upon suspicion by the military authorities there, without charge of crime. Sec. 67 of the act of April 30, 1900 authorizes the Governor of Hawaii to declare martial law and suspend the privilege of the writ of habeas corpus until the decision of the President can be made known. On Dec. 7, 1941 the Governor of Hawaii issued a proclamation declaring martial law and suspending the privilege of the writ. This action was approved by the President. An order of the Commanding General, Hawaiian Department, prohibited the issuance of writs of habeas corpus. The district court denied the writ on the ground this order prevented its issuance. Affirmed. Held: The invasion of Hawaii on December 7, 1941 and the imminent danger of another invasion justified the imposition of martial law and the limitation by the military authorities of the functions of the civil courts. Ex parte Zimmerman (C. C. A., 9, 1942), 132 F. (2d)

442.

Petition for writ of habeas corpus against the warden of a county prison. Relator, an enrolled temporary member of the Coast Guard Reserve and in charge of a plant guard detail, killed a man in the yard of the plant. He was arrested, indicted by the county grand jury for murder and was in the custody of a respondent. The petitioner contended that he was in custody for an act done in pursuance of a law of the United States (R. S. 753). At the time of the shooting a riot was in progress. The crowd moved forward beginning to surround the two guards. One of its leaders laid hands on relator and whirled him around. Others got hold of the other guard's revolver and tried to get it away from him. Relator had just managed to get himself out of the crowd when someone threw a half brick which struck him in the back of the head and at the same moment he saw a man run down the side street and away from him and the crowd. Believing, whether rightly or wrongly, that this was the person who had thrown the brick, relator ordered the man to stop

and then fired one or two shots in the air. When the man refused to stop, relator fired at his legs. The man happened to stumble at that time and fell prone, so that the bullet caused a fatal wound. Order entered discharging relator from custody of respondent. Relator also discharged from custody of Federal court because he had already been acquitted by a naval court-martial. Held: Relator, acting in the course of his duty, was trying to make an arrest. He had reasonable cause to believe and did honestly believe that the arrest was necessary to the performance

of his duty in quelling the riot. His use of the weapon was reasonably necessary in order to make the arrest As a member of the Coast Guard Reserve, relator was a member of the armed forces of the United States A guard in the service of the United States, protecting the plant of a vital war industry, who, in the performance of his duty, does an act for which the State authorities propose to prosecute him, should be held amenable to the law of the United States and to no other. Brown v. Cain, (D. C., E. D. Pa., 1944), 56 F. Supp. 56.

761. Habeas corpus; allowance and direction of writ.

Notes of Decisions

may not be thought to state separate offenses. Id.

In general.-Where petition for writ of tended to impose the sentence pronounced habeas corpus presented only questions of irrespective of fact that some of the counts law which court was in a position to decide adversely to petitioner on facts appearing in his own petition, the issuance of a show cause order to warden was unnecessary and failure to order that body of petitioner be produced in court was not error. 28 U. S. C. A. 455. McKee v. Johnston, Warden (C. C. A. 9, 1939), 109 F. (2d) 273; certiorari denied (1940), 309 U. S. 664.

In habeas corpus proceeding on ground that sentence exceeded maximum term imposable, it will be presumed if necessary to support the judgment that the court in

The statutory provision relating to judg ment on petition for a writ of habeas corpus vests power in the judge or court to which application for writ is made to refuse to issue writ if petition discloses that prisoner is not entitled to his discharge, and in such cases it is not necessary to take evidence, and prisoner is not entitled to appear in person at hearing of application. McCord v. Page, Provost Marshal of Brooks Field (C. C. A. 5, 1941), 124 F. (2d) 68.

766. Habeas corpus; hearing and disposition.

Notes of Decisions

I. Persons in custody of military authori- | following conviction for same offense by a ties.-Change citation to read: U. S. ex rel. Palmer v. Adams (D. C., 1927), 26 F. (2d) 141; appeal dismissed (C. C. A., 1928), 29 F. (2d) 541.

On habeas corpus to obtain release from sentence of a court-martial, there can be no discharge if the court had jurisdiction to try offender for offense and sentence was one which the court could under the law pronounce. Sanford, Warden v. Robbins (C. C. A. 5, 1940), 115 F. (2d) 435; Mosher v. Hudspeth, Warden (C. C. A. 10, 1941), 123 F. (2d) 401; certiorari denied (1942), 62 Sup. Ct. 1039.

previous court-martial, could not be disturbed on habeas corpus proceedings, irrespective of whether judgment was right or wrong, where judgment had not been revised or reversed. Articles of War 40 and 50, Article of War 48 and 502. Id.

Where a soldier was sentenced by a courtmartial on May 24, 1920, to life imprisonment for murder and thereafter to 15 years' imprisonment for escape and robbery by a second court-martial, and board of clemency had recommended that only so much of the life sentence as exceeded 30 years should be remitted, and President had approved

Where former conviction was pleaded in board's recommendation, and second courtbar of further prosecution before a court-martial had jurisdiction to try soldier for martial, and plea was regularly urged and escape and robbery, and sentence for such overruled by the court, and there was no offenses was one which the court under the lack of judicial atmosphere or of aid and law could pronounce, soldier was not enadvice of counsel, District Court should not titled to release on habeas corpus. Mosher have attempted to retry merits of plea in v. Hudspeth, Warden. (C. C. A. 10, 1941), habeas corpus proceedings. Sanford, War- 123 F. (2d) 401. den v. Robbins (C. C. A. 5, 1940), 115 F. (2d) 435; certiorari denied (1941), 312 U. S. 697.

The judgment of a court-martial, convicting accused of rape and sentencing accused to life imprisonment after President had ordered that accused be given a new trial

II. Persons in military service.-A soldier engaged in serving the period in the Army for which he has voluntarily enlisted cannot obtain his release from military service by writ of habeas corpus, since his detention results from an enforcement of a valid

"contract" and is not unlawful.

McCord v. Page, Provost Marshal of Brooks Field (C. C. A. 5, 1941), 124 F. (2d) 68.

of his religion were incompatible with his military duties to salute superior officers and the United States flag, had voluntarily enlisted before being ordained as a minister, and no invalidity in enlistment was claimed, dismissal of petition for habeas corpus was

Where soldier, seeking release from United States military forces by habeas corpus on ground that he had become an ordained minister in a Bible society and that tenets proper. Id.

767. Witness fees; U. S. Courts generally.-When any officer or employee of the United States is summoned as a witness for the Government, his necessary expenses incident to travel by common carrier, and if travel is made by privately owned automobile, mileage at a rate not to exceed 5 cents per mile, together with a per diem allowance not to exceed $6 in lieu of subsistence under such regulations as may be prescribed by the Attorney General, shall, when sworn to, be paid by the United States marshal upon certificate of the United States attorney, assistant United States attorney, or United States commissioner, but no other mileage or compensation in addition to his salary shall in any case be allowed. Whenever any such officer or employee of the United States performs travel in order to appear as a witness on behalf of the United States in any case involving the activity in connection with which such person is employed, his travel expenses and per diem allowance in lieu of subsistence in connection therewith shall be payable from the appropriation otherwise available for the travel expenses of such officer or employee, such payment to be made by the disbursing officer charged with the disbursement of funds under that appropriation after proper certification by a certifying officer of the department or agency concerned. R. S. 850; sec. 2, act of Dec. 24, 1942 (56 Stat. 1088); 28 U. S. C 604.

Witnesses attending in such courts, or before such commissioners, shall receive for each day's attendance and for the time necessarily occupied in going to and returning from the same, $2, and 5 cents per mile for going from his or her place of residence to the place of trial or hearing and 5 cents per mile for returning: Provided, That witnesses (other than witnesses who are salaried employees of the Government and detained witnesses) in the United States courts, including the District Court of Hawaii, the District Court of Puerto Rico, and the District Court of the United States for the District of Columbia, who attend court or attend before United States commissioners, at points so far removed from their respective residences as to prohibit return thereto from day to day, shall be entitled, in addition to the compensation provided by existing law, as modified by this Act, to a per diem of $3 for expenses of subsistence for each day of actual attendance and for each day necessarily occupied in traveling to attend court and return home. In cases in which the United States is a party, witnesses on behalf of the United States shall be entitled to the payments provided by this section upon the certificate of the United States attorney, or assistant United States attorney, or United States commissioner. Sec. 3, act of Apr. 26, 1926 (44 Stat. 324); sec. 1, act of Dec. 24, 1942 (56 Stat. 1088); 28 U. S. C. 600c.

* Provided further, That whenever an employee of the United States performs travel in order to appear as a witness on behalf of the United States in any case involving the activity in connection with which such person is employed, his travel expenses in connection therewith shall be payable from the appropriation otherwise available for the travel expenses

of such employee. Department of Justice Appropriation Act of July 2, 1942 (56 Stat. 486); 28 U. S. C. 604a.

The first paragraph of the original text has been amended as indicated in first paragraph, supra.

The second and third paragraphs of the original text, based on sections 1 and 2, act of April 26, 1926 (44 Stat. 323); 28 U. S. C. 600a, 600b, have been eliminated from the Code. The fourth paragraph has been amended as indicated in second paragraph, supra.

The fifth paragraph, based on section 4, act of April 26, 1926 (44 Stat. 324); 28 U. S. C. 600d, has been eliminated from the Code.

As repeated in the Department of Justice Appropriation Act, 1941 and subsequent acts, including Department of Justice Appropriation Act, 1945 (58 Stat. 410), the words "except in the district of Alaska" are added to the last paragraph of the original text.

The third provision, supra, is added as a new paragraph, and has been repeated in subsequent appropriation acts, including Department of Justice Appropriation Act, 1945 (58 Stat. 410).

For fees and expenses of witnesses attending service courts of friendly foreign forces within the United States, see 2292-3, post.

767a. Witness fees of civilian employees testifying on behalf of District of Columbia. That from and after the passage of this Act employees of the Government of the United States in active service who are called upon to serve as witnesses on behalf of the District of Columbia in any court proceeding in which the government of the District of Columbia may be a party and employees of the government of the District of Columbia who are called upon to serve as witnesses on behalf of the United States or the District of Columbia in any court proceeding in which the Government of the United States or the government of the District of Columbia may be a party, shall not be paid witness fees for such service, but the period of such service shall be without loss of salary or compensation and shall not be deducted from any leave of absence with pay authorized by law. Act of Oct. 14, 1941 (55 Stat. 737); 5 U. S. C. 30n−1.

CHAPTER 14

COURT OF CLAIMS

Jurisdiction; claims of persons erroneously | Calling on departments for
convicted in United States Courts, 770a.
(Judicial Code, sec. 164), 780.
Time limit for filing claims (Judicial Code, Review by Supreme Court, 789.
sec. 156), 776.

information

770a. Jurisdiction; claims of persons erroneously convicted in United States Courts.

Notes of Decisions

In general.-The only evidence admissible specified recitals. Where the pardon does to show the innocence of the plaintff under not state the matters required by the statute, the act of May 24, 1938, is a certificate of the petition must be dismissed. Prisament the court or a pardon containing certain v. U. S. (1941), 92 Ct. Cl. 434.

776. Time limit for filing claims (Judicial Code, sec. 156).

Notes of Decisions

In general. (1st paragraph.)—Change citation to read: Cohen, Goldman & Co. บ. U. S. (1933), 77 Ct. Cl. 713; certiorari denied (1933), 290 U. S. 681.

(3d paragraph.)-Change citation to read: Corporation of the Royal Exchange Assurance v. U. S. (D. C., 1934), 6 F. Supp. 689; affirmed (C. C. A., 2, 1935), 75 F. (2d) 478.

Plaintiff, having delayed to bring suit for more than 6 years, it is held that the cause

of action is barred under the provisions of section 156 of the Judicial Code, which imposes a limitation of 6 years in which suit may be brought after a claim accrues. Brownstein-Louis Co., A Corp., v. U. S. 90 Ct. Cl. 1.

Suits for royalties.-Change citation to read: Manufacturers' Aircraft Assn. v. U. S. (1933), 77 Ct. Cl. 481; certiorari denied (1934), 291 U. S. 667.

780. Calling on departments for information (Judicial Code, sec. 164).

Notes of Decisions

In general.-Under the Court of Claims procedure, where the defendant is always the Government, "interrogatories" should be addressed to the heads of various departments, as is the case with reference to "calls for information." Pratt v. U. S. (1938), 87 Ct.

Cl. 586.

Whether a response to questions propounded might involve disclosure of military secrets is a matter to be acted upon by the head of the department subsequent to the issue of the request for information. Id.

789. Review by Supreme Court.-(a) That in any case in the Court of Claims including those begun under section 180 of the Judicial Code, that court at any time may certify to the Supreme Court any definite and distinct questions of law concerning which instructions are desired for the proper disposition of the cause; and thereupon the Supreme Court may give appropriate instructions on the questions certified and transmit the same to the Court of Claims for its guidance in the further progress of the cause.

(b) In any case in the Court of Claims, including those begun under section 180 of the Judicial Code, it shall be competent for the Supreme Court, upon the petition of either party, whether Government or claimant, to require, by certiorari, that the cause be certified to it for review and determination of all errors assigned, with the same power and authority, and with like effect, as if the cause had been brought there by appeal. In such

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