APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF CALIFORNIA.
MR. JUSTICE CLARKE delivered the opinion of the court.
In February, 1920, Roy Marshall, a private in the United States Army, serving at Vladivostok, Siberia, was tried for robbery by a court martial there convened, was found guilty and was sentenced to imprisonment in the penitentiary at McNeil's Island.
Five months later, when Marshall was at the Disciplinary Barracks on Alcatraz Island, awaiting transportation to McNeil's Island, a petition for a writ of habeas corpus was filed in his behalf by his attorney, G. D. Collins, in the District Court for the Northern District of California.
In response to a rule to show cause why the writ should not be issued, Colonel J. D. McDonald, Commandant of the Disciplinary Barracks, filed a demurrer to the petition on two grounds: (1) That the petition did not state facts sufficient to entitle petitioner to the writ, and (2) That the court did not have jurisdiction to entertain the petition.
This demurrer was sustained, without opinion, and the case is here for review on direct appeal from the District Court, based on sufficient constitutional grounds.
If the District Court had issued the writ as prayed for, the only questions it would have been competent for it to hear and determine would have been, "Did the court martial which tried and condemned the prisoner have jurisdiction, of his person, and of the offense charged, and was the sentence imposed within the scope of its lawful power?" "The single inquiry, the test, is jurisdiction. That being established, the habeas corpus must be denied and the petitioner remanded. That wanting, it must be sustained and the petitioner discharged." In re Grimley, 137 U.S. 147, 150; Johnson, v. Sayre, 158 U.S. 109, 118; Carter v. McClaughry, 183 U.S. 365, 368; Mullan v. United States, 212 U.S. 516, 520; Ex parte Reed, 100 U.S. 13, 23. But, the court martial being a special statutory tribunal, with limited powers, its judgment is open to collateral attack, and unless facts essential to sustain its jurisdiction appear, it must be held not to exist. McClaughry v. Deming, 186 U.S. 49, 62, 63; Givens v. Zerbst, 255 U.S. 11, 19.
Thus, the question for decision here is, Does the petition show want of jurisdiction in the court martial over the person of the accused and over the offense with which he was charged and for which he was sentenced?
Neither the constitution, the convening, nor the regularity of the proceedings, of the court martial in this case, is assailed, and that the prisoner was a private in the Army of the United States is admitted. The only allegation in the petition of sufficient substance to deserve notice is, that the judgment is void for want of jurisdiction in the court to render it, because the specifications do not charge any crime known to the laws of the United States, in that it does not appear therein that the property alleged to have been taken was not the property of
the accused, and also because it is not averred therein that the property was in the care, possession and custody or control of the person from whose possession it is alleged to have been taken.
The only part of the charge appearing in the petition is a copy of three specifications, ...