The opinion of the court was delivered by: FOLLMER
The petitioner, now a prisoner at the United States Penitentiary, Lewisburg, Pennsylvania, seeking a writ of habeas corpus, was a soldier in the United States Army at the time he was convicted by general court-martial in Korea on June 8, 1951. He was found guilty of the premeditated murder of a Korean woman on March 16, 1951, in violation of Article of War 92, 10 U.S.C.A. § 1564,* and of the attempted rape of said person, in violation of Article of War 96, 10 U.S.C.A. § 1568. dagger The general court-martial sentenced petitioner to be dishonorably discharged, to forfeit all pay and allowances to become due after the date of the order directing execution of the sentence, and to be confined at hard labor for the term of his natural life.
On July 3, 1951, the sentence was approved by the convening authority of the general court-martial.
On January 15, 1952, a board of review in the office of The Judge Advocate General set aside the conviction for premeditated murder and sustained the conviction for attempted rape. Consequently, it held the sentence of confinement at hard labor for life was improper and stated: 'Under the vicious circumstances in this case, a sentence of dishonorable discharge, total forfeitures and confinement at hard labor for twenty (20) years is appropriate for conviction of an attempt to commit rape.'
The sentence, as modified, was affirmed.
Although the charges under which petitioner was tried alleged violations of the Articles of War, the Uniform Code of Military Justices, 50 U.S.C.A. 551 et seq., became effective on May 31, 1951, so that the trial on June 8, 1951 and subsequent proceedings were had under the Uniform Code.
The Law Officer, under the Uniform Code, does not deliberate with the court but is required to instruct the court upon the applicable law in the case, Article 51(c) of the Uniform Code of Military Justice, 50 U.S.C.A. § 626.
The Law Officer instructed the court-martial that since the accused had been found guilty of premeditated murder, the only sentences authorized by law were death or imprisonment for life, Article of War 92, 10 U.S.C.A. § 1564.
He made no reference to the maximum for attempted rape, but this would have been superfluous since in court-martial practice a sentence is entire and single, or, as is commonly stated, a general or gross sentence, and the court was required as a consequence of the conviction for premeditated murder, to impose a sentence of either death or life imprisonment.
Petitioner contends that the board of review having set aside the murder conviction for lack of evidence and having affirmed the conviction for attempted rape, should have ordered a rehearing or that the charges be dismissed, and as a sequitur, that petitioner should be released in this habeas corpus proceeding. What petitioner is in effect contending is that unless there are concurrent sentences on the various specifications as might be imposed on various counts of an indictment in the civil courts, the prisoner goes scot free if the military board of review sets aside the conviction on one of the specifications.
Col. Winthrop in 1896 in his classic treatise
on military law states:
'In the absence of any statutory direction on the subject, usage has established that the sentence of a court-martial shall be, in every case, an entirety; that is to say that there shall be but a single sentence covering all the convictions on all the charges and specifications upon which the accused is found guilty, however separate and distinct may be the different offences found, and however different may be the punishments called for by the offences.'
'* * * The concurrent sentence, in the sense in which that device is utilized in the administration of criminal law in the civilian community, is entirely without precedent in military procedure. See Manual for Courts-Martial, supra, paragraphs 76, 125, 126, 127. Under military law a single inclusive sentence is imposed -- the sum of individual punitive actions deemed legal and adequate -- regardless of the number or character of the offenses of which the accused has been convicted. It will be obvious that a rule which has its basis in a concurrent sentence situation in not an appropriate subject for importation into a system in which the instrument lying at the basis of the principle is unknown, and a unitary sentence is always assessed.'
Nor is the gross or general sentence unknown to the civil law. In Jones v. Hill, 3 Cir., 71 F.2d 932, it was recognized that
'* * * 'The great weight of authority in the federal courts holds that such sentences are not void and that a general or gross sentence may be imposed under an indictment containing more than one count so long as it does not exceed the aggregate of the punishments which could have been imposed upon the several counts. * * *"
While there has been a tendency in some of the civil courts recently to criticize the general sentence as loose practice,
it certainly does not involve a want of due process or affect the jurisdiction or power of the military courts. Neither is there anything startling or shocking in the construction by the military courts that a general sentence, where conviction on one or more specifications is set aside, remains valid to the extent that it is applicable to the remaining specifications. The civil courts have, in the past, applied the same doctrine. In McKee v. Johnston, 9 Cir., 109 F.2d 273, 276, a general sentence of ...