is released on an illegal or void order of the court he may be retaken to serve out the sentence. See Hopkins v. North, 151 Md. 553, 135 A. 367, 49 A.L.R. 1303 and Note. Release through illegal order, treated as escape, Hopkins v. North, supra.
Ex parte Philbrook, 1931, 121 Neb. 421, 237 N.W. 391, (an unauthorized release by the warden; not entitled to credit for time spent outside prison); Schwamble v. Sheriff, 22 Pa. 18 (person released in error could again be placed in custody). Accord Leonard v. Rodda, 5 App.D.C. 256.
The government may recommit a prisoner following his release or discharge by mistake where sentence would not have expired had he remained in custody. 24 C.J.S., supra, Criminal Law, § 1999, p. 1246; White v. Pearlman, 10 Cir., 1930, 42 F.2d 788.
'The sentence of imprisonment of any person convicted of a crime in a court of the United States shall commence to run from the date on which such person is received at the penitentiary * * * for service of said sentence: Provided, That if any such person shall be committed * * * to await transportation to the place at which his sentence is to be served, the sentence of such person shall commence to run from the date on which he is received at such jail or other place of detention. No sentence shall prescribe any other method of computing the term.' Act June 29, 1932, c. 310, Sec. 1, 47 Stat. 381, 18 U.S.C.A. § 709a.
'The Constitution assigns to the legislature the power to enact laws defining crimes and fixing the degree and method of punishment; to the judiciary the power to try offenses under those laws and impose punishment within the limits and according to the methods therein provided; to the executive the power to relieve from the punishment so fixed by law and so judicially ascertained and imposed.' Ex parte United States, 242 U.S. 27, 37 S. Ct. 72, 61 L. Ed. 129, L.R.A. 1917E, 1178, Ann.Cas. 1917B, 355.
The civil courts cannot review the merits of cases tried in the military tribunals. On habeas corpus to obtain release from the sentence of a court-martial there can be no discharge if the court had jurisdiction to try the offender for the offense and the sentence was one which the court could under the law pronounce. Ex parte Mason, 105 U.S. 696, 26 L. Ed. 1213; United States ex rel. Feld v. Bullard, 2 Cir., 290 F. 704; 29 C.J. p. 93, 94, 39 C.J.S., Habeas Corpus, § 31; Sanford v. Robbins, 5 Cir., 1940, 115 F.2d 435; Grafton v. United States, 206 U.S. 333, 27 S. Ct. 749, 51 L. Ed. 1084, 11 Ann.Cas. 640.
On application for habeas corpus we are not concerned with the guilt or innocence of the petitioner. In re Yamashita, 327 U.S. 1, 66 S. Ct. 340, 90 L. Ed. 499; Ex parte Quirin, 317 U.S. 1, 63 S. Ct. 1, 87 L. Ed. 3.
As to the procedure in granting a rule to show cause, see Walker v. Johnston, 312 U.S. 275, 61 S. Ct. 574, 85 L. Ed. 830.
The function of habeas corpus is exhausted when it is ascertained that the agency under whose order the petitioner is being held had jurisdiction to act. If the writ is to issue, mere error in the proceeding which resulted in the detention is not sufficient. Eagles v. United States ex rel. Samuels, 329 U.S. 304, 67 S. Ct. 313, 317, 91 L. Ed. -- .
'Deprivation of petitioner of basic and fundamental procedural safeguards, and assertion of power to act beyond the authority granted the agency, and action without evidence to support its order, are familiar examples of the showing which is necessary.' Id., Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461, 146 A.L.R. 357; Bridges v. Wixon, 326 U.S. 135, 149, 65 S. Ct. 1443, 89 L. Ed. 2103.
If it cannot be said that there were procedural irregularities of such a nature or magnitude as to render the hearing and we add the detention unfair the inquiry is at an end. See Hawk v. Olson, 326 U.S. 271, at page 274, 66 S. Ct. 116, 90 L. Ed. 61.
In habeas corpus proceedings the court cannot consider such matters as the fact that the judge in imposing sentence improperly considered a charge of crime of which the petitioner had been acquitted or that punishment was excessive in view of the facts of the case. These are matters which must be availed of in the original cause. Upon habeas corpus the court examines only the power and authority of the court to act, not the correctness of its conclusion. The only question we consider here is whether the sentence imposed upon petitioner is justified by the record in the original cause. Widener v. Harris, 4 Cir., 60 F.2d 956.
The function of the writ of habeas corpus is to determine whether or not the prisoner is entitled to immediate release and not to secure the judicial decision of a question which even if determined in the prisoner's favor could not result in his immediate release. McNally v. Johnston, 9 Cir., 100 F.2d 280. The only judicial relief authorized is the discharge of the prisoner or admission to bail and that only when the detention is found to be unlawful. Without restraint of liberty which is unlawful the writ will not issue. Id.
From the foregoing, it is obvious that being subject to military jurisdiction the Army had the right to take the petitioner again into custody and lodge him at the place designated to serve out his sentence.
We find after a complete review of the court-martial record, having in mind the broad scope discussed in Johnson v. Zerbst, supra, and of the evidence before us, as well as the brief of petitioner's counsel, that there is no ground for granting the writ. The prayer of the petition will therefore be denied by an order filed this date.
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