or for retrial. In a military situation, however -- and for reasons which must be apparent to all -- this disposition of the matter is impracticable, if not impossible of achievement. In view of the lapse of time involved, it is highly probable that the court-martial which tried the accused, Keith, is no longer functioning as such. Through change of assignment, or otherwise, its members, indeed, may be scattered beyond recall. Even assuming the contrary in the present situation, the mentioned impossibility is certain to exist in many others involving an identical problem. Remand to the trial forum, for virtually any purpose in the military scene, is a difficult business, and remand from this Court simply an unworkable device. Fortunately it is also an unnecessary one. The Uniform Code of Military Justice, Article 66(c), 50 U.S.C. § 653, provides as follows:
"In a case referred to it, the board of review shall act only with respect to the findings and sentence as approved by the convening authority. It shall affirm only such findings of guilty, and the sentence or such part or amount of the sentence, as it finds correct in law and fact and determines, on the basis of the entire record, should be approved. In considering the record it shall have authority to weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact, recognizing that the trial court saw and heard the witnesses. (Emphasis supplied.)'
'Had the board of review, following its appearance before that body, disapproved the findings of guilty as to the misbehavior charge in the present case, it could have affirmed only 'such part or amount of the sentence, as it * * * (found) correct in * * * fact and * * * (determined), on the basis of the entire record, should be approved.' This Court is without statutory authority to act in such a manner. We may, however, correct a board of review in matters of law -- and this we have done in the instant case with respect to board action on the charge specifying an instance of misbehavior. Accordingly, we now remand the case to The Judge Advocate General, United States Army, for reference to the board of review for the purpose of determining the adequacy of the sentence. See Uniform Code of Military Justice, Article 67(f), 50 U.S.C. § 674. * * *'
Sentencing is a post trial procedure, a stage beyond the actual trial, as to which the Army must make its own determination through its own tribunals. There is nothing abhorrent in the thought of separating the sentencing and the guilt-finding functions. There have been suggestions in relation to the civil courts that 'once the judge has performed his duty as presiding officer at the trial and guilt is established the disposition would be turned over to a sentencing board * * *.'
Recently the Honorable Simon E. Sobeloff, Solicitor General of the United States, in addressing the Section of Criminal Law of the American Bar Association, proposed that appellate courts be given the power to review sentences imposed.
Nor have appellate courts hesitated to reduce sentences in excess of the maximum. In Spirou v. United States, 2 Cir., 24 F.2d 796, 797, the court said:
'* * * The sentence is void merely for the excess. Dodge v. United States, 2 Cir., 258 F. 300, 306, 7 A.L.R. 1510. In Wechsler v. United States, 2 Cir., 158 F. 579, this court, under similar circumstances, reversed and remanded to the District Court, with instructions to enter a sentence in accordance with the statute. We see no reason, however, why we may not adopt the less cumbersome procedure of correcting the sentence by our own mandate, as was done in Salazer v. United States, 8 Cir., 236 F. 541; Priori v. United States, 6 Cir., 6 F.2d 575; Goode v. United States, 8 Cir., 12 F.2d 742; Jackson v. United States, 9 Cir., 102 F. 473.'
The Supreme Court in Bozza v. United States, 330 U.S. 160, 166, 67 S. Ct. 645, 649, 91 L. Ed. 818, aptly said:
'* * * This Court has rejected the 'doctrine that a prisoner, whose guilt is established by a regular verdict, is to escape punishment altogether because the court committed an error in passing the sentence.' In re Bonner, supra, 151 U.s, (242) at 260, 14 S. Ct. (323), at page 327, 38 L. Ed. 149. The Constitution does not require that sentencing should be a game in which a wrong move by the judge means immunity for the prisoner. See King v. United States, 69 App.D.C. 10 (15), 98 F.2d 291, 296. * * * '
Since a court-martial is generally beyond recall after the trial, certainly the power to correct a sentence, in a situation such as we now have before us, must lie somewhere within the military system and the Court of Military Appeals, the highest court in the military system,
has made the determination where that power lies. It does not involve a lack of jurisdiction or a want of power within the military system which would justify this Court in interfering therein. Within the military system the action of the board of review was proper and within its authority.
In DeCoster v. Madigan, 7 Cir., 223 F.2d 906, 910, in a habeas corpus proceeding involving a defendant involved in the same crime with the petitioner, the court arrived at a different conclusion. Its reasoning is predicated upon the proposition that 'imposition of sentence by the proper authority is an essential step in administration of criminal justice.' But the fallacy lies in attempting to determine for the army what constitutes such proper authority within the military system instead of leaving that determination of a procedural matter to the Court of Military Appeals. This Court is in accord with the conclusion arrived at by Judge Finnegan in his dissenting opinion. What effect, in the light of the Supreme Court's opinion in Toth v. Quarles, supra, the dishonorable discharge would have upon an attempt to resentence on the theory of the majority opinion that the original sentence was void, need not be decided here.
The application for writ of habeas corpus will be denied and the rule to show cause discharged.