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SMITH v. HUMPHREY

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF PENNSYLVANIA


December 30, 1949

SMITH
v.
HUMPHREY

The opinion of the court was delivered by: FOLLMER

Bernard W. Smith has filed his second application in this Court for a writ of habeas corpus. *fn1" In an 'Appendix II' to his petition he sets forth as his reason for not having applied for a new trial or other relief under the provisions of the 53rd Article War, 10 U.S.C.A. ยง 1525, that he has been discharged, is now a civilian and no longer subject to military jurisdiction. Petitioner admits that he is now imprisoned in the United States Penitentiary, Lewisburg, Pennsylvania, under a sentence adjudged by an Army Court-Martial. This contention is therefore without merit. *fn2" Petitioner had an available remedy by application for new trial or other relief under Article of War 53 and the Motion to Dismiss must be granted. *fn3"

The petition for writ of habeas corpus is accordingly denied and the rule to show cause, heretofore entered thereon, vacated.


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