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March 11, 1947

HIATT et al.

The opinion of the court was delivered by: FOLLMER

William F. Bigrow, a military prisoner at the United States Penitentiary, Lewisburg, Pennsylvania, who has filed a petition for writ of habeas corpus, was convicted in a court-martial proceeding on two charges as follows:

'Charge I: Violation of the 93rd Article of War.

 'Specification: In that Private William F. Bigrow, Company 'A', 35th Tank Battalion, did, in the vicinity of Vannes, France, on or about 9 August 1944, willfully, feloniously, and unlawfully kill Tec 5 Walter J. LaSavage, by shooting him in the neck with a machine gun.

 'Charge II: Violation of the 75th Article of War.

 'Specification: In that Private William F. Bigrow, Company 'A', 35th Tank Battalion, was at Caudin, France, on or about 9 August 1944, drunk on duty as cannoneer in a tank enroute between Caudin, France, and St. Ave, France, in the presence of the enemy.'

 The petition contains numerous allegations which petitioner seeks to show constitute a denial of due process. The first matter assigned by him as error is that, 'The Specification does not allege before the enemy nor do the facts in the Record of trial bear this out.' The petitioner's reference is to the specification under charge 2 which uses the words 'in the presence of the enemy.' Article of War 75 under which this charge is brought uses the words 'before the enemy.' *fn1" Petitioner therefore questions the sufficiency of this specification.

 On a criminal charge in the civil courts habeas corpus may not be invoked to question the sufficiency of an indictment which on its face is within the jurisdiction of the court to which it is returned. *fn2" Such an attack on an indictment is available in instances where it charges no crime whatsoever 3 or where an indictment has been altered in substance *fn4" ; however, not as to matters which in no wise prejudice the defendant. *fn5" An indictment is returned under oath by the grand jury and can only be superseded by an indictment of equal solemnity, while a criminal information being the official act of the United States Attorney and not being founded on the oath of a grand jury, may be amended in either form or substance. *fn6" Specifications in military procedure are more nearly analogous in their informality to criminal informations, so that where a person has been tried in a military court the civil courts will consider only whether the charge was within the jurisdiction of the military court, holding that the matter of setting up the offense is one of pleading rather than jurisdiction. *fn7" It will thus be seen that here we have three gradations of procedure, i.e., indictment, criminal information, and specifications in military procedure, the latter the least formal of all

 Petitioner, in these proceedings, in attacking this specification stressed the failure to use the exact words 'before the enemy.' In determining whether any offense whatsoever within the jurisdiction of the court was charged it is unquestionably sufficient if the language is, according to the natural import of the words, fully descriptive of the offense, *fn8" and as stated by the Supreme Court in Re Yamashita, 327 U.S. 1, 17, 66 S. Ct. 340, 349: 'Obviously charges of violations of the law of war triable before a military tribunal need not be stated with the precision of a common law indictment. * * * '

 If any authority on this point is needed, the terms 'before the enemy' and 'in presence of the enemy' are treated as being synonymous both by the Manual for Courts-Martial *fn9" and by Winthrop in his treatise on military law. *fn10" There is therefore no merit whatsoever in the petitioner's position in relation thereto

 The petitioner further alleges (using his language) that the second 'specification' contains two charges, 'Specification of Charge 2 contains two charges (i.e.) Drunk on Duty, article of war 85 and also 75 articles of war, (10 U.S.C.A. ยงยง 1557, 1547).'

 The record shows that charge 2 covers a violation of the 75th Article of War. In military procedure the specification which follows the charge sets forth the acts or omissions of the accused claimed to constitute the offense named in the charge. *fn11"

 If a recital therein is not part of the offense, it is surplusage. Winthrop on this point says, *fn12" 'But if left to form a part of a pleading or Charge, it cannot affect its legal validity, since utile per inutile non vitiatur.' This is not a question of jurisdiction such as where no offense whatsoever has been charged. The charge here is definitely 'misbehavior before the enemy.' The Military Court had 'jurisdiction to try that charge, and it is for the court having such jurisdiction to decide upon the validity and sufficiency of the pleadings necessary to bring that charge before the court.' *fn13"

 Furthermore, in considering such questions in a habeas corpus proceeding in the civil courts it must be remembered that technical niceties of civil pleadings cannot be made the test, but that military usage and procedure is an important factor and that all that is required is that the allegations of the charge tested by any reasonable standard adequately alleges a violation of the law of war and that the military tribunal had authority to try and decide the issue which it raised. *fn14" And in this connection the courts have taken cognizance of the fact that Courts-Martial are 'often required by the exigencies of military service to act speedily and in the field.' *fn15" As the Supreme Court has pointed out, *fn16" ' * * * To those in the military or naval service of the United States the military law is due process. The decision, therefore, of a military tribunal acting within the scope of its lawful powers cannot be reviewed or set aside by the courts,' and that *fn17" ' * * * military tribunals are as necessary to secure subordination and discipline in the army as courts are to maintain law and order in civil life; and the experience of our government for now more than a century and a quarter, and of the English government for a century more, proves that a much more expeditious procedure is necessary in military than is thought tolerable in civil affairs. * * *

 Petitioner next seeks to attack the verdict on the basis of the trial court's interpretation of weight given to certain evidence. It was for the trial court to decide whether it would believe or disbelieve certain testimony and to determine what weight it would give to any portion of the evidence. *fn18" Moreover, from a ...

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