Mullan v. United States, 212 U.S. 516 (1909)
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Scribd Government DocsMullan v. United States, 212 U.S. 516 (1909)
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Scribd Government Docs212 U.S.
516
29 S.Ct. 330
53 L.Ed. 632
DENNIS W. MULLAN, Appt.,
v.
UNITED STATES.
No. 82.
Argued January 20, 1909.
Decided February 23, 1909.
Messrs. W. E. Richardson, F. L. Siddons, and J. H. Ralston for appellant.
Assistant Attorney General John Q. Thompson and Mr. George M.
Anderson for appellee.
Mr. Justice Day delivered the opinion of the court:
This appeal is prosecuted to reverse the judgment of the court of claims,
dismissing the petition of Dennis W. Mullan, appellant. Full findings of facts
were made in the court of claims, and, upon consideration, the claim of the
petitioner was dismissed. 42 Ct. Cl. 157. From the findings of fact made by the
court it appears that Dennis W. Mullan was a commander, serving as
commandant, at the Navy yard at Pensacola, where he served from July 30,
1896, till March 7, 1897. Charges having been preferred against him, at his
request a court of inquiry was convened to investigate them. The court of
inquiry, after a full investigation and trial, reported adversely to the appellant.
At that time he was subject to examination for promotion to the grade of
captain, and, unless he could acquit himself of the charges preferred, he would
be liable under 1447 of the Revised Statutes of the United States (act of 1882,
22 Stat. at L. 286, chap. 391, U. S. Comp. Stat. 1901, p. 1021) to be discharged
from the service without more than one year's pay. In this condition of affairs
the appellant made application to the Secretary of the Navy for a court-martial
to try him upon the charges to be formulated from the finding of the court of
inquiry. Correspondence ensued between the Secretary of the Navy and the
appellant, fully set forth in the report of this case in the court of claims. 42 Ct.
Cl. 159 et seq. The Secretary of the Navy, in answer to appellant's request,
proposed to call a court-martial at Washington for trial upon such charges as
the Department might designate, provided the record of the court of inquiry
should be admitted as evidence, each party to have the privilege of introducing
other evidence. The appellant advised the Secretary that he would agree to such
court-martial, it being understood that the privilege of introducing other
witnesses should embrace the right to recall witnesses who had previously
testified before the court of inquiry, and to take depositions upon written
interrogatories. The Secretary of the Navy refused to permit the recalling of
witnesses who had testified before the court of inquiry, or to permit testimony
to be taken by interrogatories, but permitted the calling of other witnesses.
Thereupon the appellant notified the Department that he acceded to the
conditions stated in the Secretary's letter. The court-martial was ordered by the
Secretary of the Navy to try the appellant upon the charges of drunkenness and
drunkenness on duty. The evidence submitted at the court-martial consisted of
the records of the court of inquiry, together with one witness called in addition
thereto. The court-martial found the appellant guilty of both charges, and
sentenced him to be dismissed from the Navy; on June 30, 1897, the Secretary
of the Navy approved this sentence. The same was submitted to the President,
who, on July 8, 1897, made the following order in the premises:
2
'The sentence in the foregoing case of Commander Dennis W. Mullan, U. S.
Navy, is confirmed, but is mitigated as follows: To be reduced in rank, so that
his name shall be placed at the foot of the list of commanders in the Navy, and
to be suspended from rank and duty, on one-half sea pay, for a period of five
years, during which time he shall retain his place at the foot of said list.'
The appellant protested against the legality of the proceedings. At the trial
before the court-martial no objection was offered by the appellant or his
attorneys to the introduction of the evidence. On July 11, 1901, the unexpired
period of the sentence was remitted by order of the President. The suit was
begun in the court of claims to recover the difference between 'one-half sea pay'
and 'waiting orders pay,' from July 8, 1897, when the President's order was
made, as above recited, and July 11, 1901, when the President remitted the
unexpired period of the sentence, the amount claimed being the sum of
$3,934.14.
It is contended by the appellant that the proceedings of the court-martial are
null and void because of the manner in which that court was convened, upon
requirement as a condition precedent that the appellant should submit to the
introduction of the record of the testimony introduced before the court of
inquiry, with the right to call additional witnesses, as hereinbefore stated. This
contention is based upon article 60 of 1624 of the Revised Statutes (U. S.
Comp. Stat. 1901, p. 1119), which provides as follows:
5
'Art. 60. The proceedings of courts of inquiry shall be authenticated by the
signature of the president of the court and of the judge advocate, and shall, in
all cases not capital, nor extending to the dismissal of a commissioned or
warrant officer, be evidence before a court-martial, provided oral testimony
cannot be obtained.'
It is contended that, inasmuch as this case did not come within the statutory
provisions permitting the evidence before a court-martial to be used, as such
right is limited to cases not extending to the dismissal of a commissioned or
warrant officer, and a capital case, the court-martial was not properly
organized, and its proceedings were null and void. It is insisted that this
provision of the law is to enable the accused, in cases of this character, to meet
his witnesses face to face, and is analogous to the constitutional right in
criminal cases; and, being an enactment for the benefit of the service and the
protection of those engaged therein, the appellant could not waive its
provisions. But we are of opinion that this was a right which he might waive. In
Schick v. United States, 195 U. S. 65, 49 L. ed. 99, 24 Sup. Ct. Rep. 826, 1 A.
& E. Ann. Cas. 585, it was held that a party might, in the case then before the
court, waive the right to a trial by jury, and, in the course of the opinion, Mr.
Justice Brewer, speaking for the court, said (p. 71): 'Article 6 of the
amendments, as we have seen, gives the accused a right to a trial by jury. But
the same article gives him the further right 'to be confronted with the witnesses
against him . . . and to have the assistance of counsel.' Is it possible that an
accused cannot admit, and be bound by the admission, that a witness not
present would testify to certain facts? Can it be that, if he does not wish the
assistance of counsel, and waives it, the trial is invalid? It seems only necessary
to ask these questions to answer them. When there is no constitutional or
statutory mandate, and no public policy prohibiting, an accused may waive any
privilege which he is given the right to enjoy.'
The Secretary of the Navy was under no legal obligation to call a court-martial
to inquire into the charges made against the accused. The court of inquiry was
invoked, as was the court-martial, at the instance of the appellant. He had had a
full trial before the court of inquiry, in which the record disclosed a large
number of witnesses were called; he was represented by counsel; he was
present in person; he had a full opportunity to cross-examine the witnesses and
to make a defense. At the court-martial he was permitted to introduce additional
witnesses, and had the benefit of one witness whose testimony was in his favor.
We think there was nothing in the manner in which the court-martial was
organized which deprived the accused of a substantial right in such manner as
to oust its jurisdiction in the premises. The civil courts are not courts of error to
review the proceedings and sentences of courts-martial where they are legally
organized and have jurisdiction of the offense and of the person of the accused,
and have complied with the statutory requirements governing their proceedings.
Dynes v. Hoover, 20 How. 65, 15 L. ed. 838; Ex parte Reed, 100 U. S. 13, 25
L. ed. 538; Swaim v. United States, 165 U. S. 553, 41 L. ed. 823, 17 Sup. Ct.
Rep. 448.
8
It is contended that the order of July 18, 1897, in which the President
undertook to mitigate the sentence of the appellant dismissal from the Navy
to reduction to one-half sea pay for the period of five years, with reduction in
rank and suspension, as stated, was illegal and unauthorized, because of article
54, 1624, of the Revised Statutes of the United States, which provides:
'Every officer who is authorized to convene a general court-martial shall have
power, on revision of its proceedings, to remit or mitigate, but not to commute,
the sentence of any such court which he is authorized to approve and confirm.'
10
The court of claims was of opinion that this section did not apply to the action
of the President of the United States. If it be conceded for this purpose that it is
applicable to the President ( 1624, arts, 38 and 53 of the Revised Statutes), we
are of the opinion that the President's action did, in fact, mitigate the previous
sentence of the courtmartial as approved by the Secretary of the Navy. It may
be conceded that there is a technical difference between the commutation of a
sentence and the mitigation thereof. The first is a change of a punishment to
which a person has been condemned into one less severe, substituting a less for
a greater punishment by authority of law. To mitigate a sentence is to reduce or
lessen the amount of the penalty or punishment. 1 Bouvier's Law Dict. 374; 2
Id. 428.
11
When the President otherwise confirmed the sentence of the Navy Department
from absolute discharge from the Navy to reduction in rank and duty for the
period of five years on one-half sea pay, he did what in terms he undertook to
do; and, by the lessening of the severe penalty of dismissal from the Navy,
approved by the Department, reduced and diminished, and therefore mitigated,
the sentence which he was authorized to approve and confirm against the
appellant, or mitigate in his favor.
Judgment affirmed
