The opinion of the court was delivered by: FOLLMER
Petitioner, a military prisoner at the United States Penitentiary, Lewisburg, Pennsylvania, has filed, in forma pauperis, his application for a Writ of Habeas Corpus.
Petitioner was originally sentenced to death in 1943. The President commuted the sentence to life imprisonment and a dishonorable discharge, and the sentence has since then been reduced by various clemency actions to fifteen and one-half years.
On January 15, 1951, he was conditionally released but recommitted on September 15, 1951, for violation of parole. He was again conditionally released on October 19, 1952, but having again violated parole, was recommitted in February 1954.
Petitioner, citing United States ex rel. Toth v. Quarles, 350 U.S. 11, 76 S. Ct. 1, contends that 'There was no jurisdiction when this prisoner was remitted for a parole violation in September of 1951 and in May of 1954 because this prisoner had already been discharged by the Army on January 5th, 1951.' United States ex rel. Toth v. Quarles, supra, had reference to military jurisdiction over civilian ex soldiers who had severed all relationship with the military and its institutions. The opinion, 350 U.S. at page 14, 76 S. Ct. at page 4, however specifically states:
'This Court has held that the Article I clause just quoted authorizes Congress to subject persons actually in the armed service to trial by court-martial for military and naval offenses. Later it was held that court-martial jurisdiction could be exerted over a dishonorably discharged soldier then a military prisoner serving a sentence imposed by a prior court-martial. * * *'
Article 58 of the Uniform Code of Military Justice, 50 U.S.C.A. § 639, specifically provides:
'(a) Under such instructions as the Department concerned may prescribe, any sentence of confinement adjudged by a court-martial or other military tribunal, whether or not such sentence includes discharge or dismissal, and whether or not such discharge or dismissal has been executed, may be carried into execution by confinement in any place of confinement under the control of any of the armed forces, or in any penal or correctional institution under the control of the United States, or which the United States may be allowed to use; and persons so confined in a penal or correctional institution not under the control of one of the armed forces shall be subject to the same discipline and treatment as persons confined or committed by the courts of the United States or of the State, Territory, District, or place in which the institution is situated.'
There is no doubt that there was jurisdiction to recommit him for violation of parole.
Petitioner contends that the verdict of guilty was against the evidence. In Humphrey v. Smith, 336 U.S. 695, 69 S. Ct. 830, 831, 93 L. Ed. 986, the Supreme Court said:
'We may at once dispose of the contention that the respondent should not have been convicted on the evidence offered. That evidence was in sharp dispute. But our authority in habeas corpus proceedings to review court-martial judgments does not permit us to pass on the guilt or innocence of persons convicted by courts-martial.'
Consequently this issue cannot be relitigated here. The record has however been carefully examined. It cannot even be said that there was sharp dispute. There was ample evidence to support every element of the offense. The question of petitioner's guilt was fully considered by the trial court, the convening authority, the Board of Review, the Judge Advocate General, the Secretary of War and the President. The opinions of the Judge Advocate General (Respondent's Exhibit E) and the Board of Review (Respondent's Exhibit G) reveal a painstaking and exhaustive review of the evidence.
Petitioner complains that no one inquired as to the whereabouts of the murder weapon. It was neither produced nor demand made for it by the defense. As a matter of fact the testimony was that it was last seen in the hands of the defendant. He likewise complains that due to loss of memory he was not competent to stand trial. He was examined by not only one but a number of neuropsychiatrists, and the trial court on the evidence presented was fully justified in proceeding with the trial. These and other matters of a similar nature would not, in any event, be matters for habeas corpus.
In Whelchel v. McDonald, 340 U.S. 122, 124, 71 S. Ct. 146, 148, 95 L. Ed. 141, the Supreme Court said:
'There was evidence in the hearing before the District Court that petitioner may have been either insane or ...