the decision in Hirshberg v. Cooke, supra. The legislative history demonstrates beyond question that the attention of the 81st Congress was focused on this precise issue, namely, the extent of a military court's statutory power to punish a man in the service for an offense committed in a prior enlistment period from which he had been discharged. * * *.'
Then follows a recital of discussion found in House Hearings on the Uniform Code (Hearings before House Armed Services Committee, 81st Congress, 1st Session, on H.R. 2498, page 617). The facts in Gallagher are similar to those in the instant case except that in Gallagher there was apparently an admitted nine hour hiatus in the service of the accused.
As I indicated above, my deduction from a careful reading of the record of this trial implemented by the personal appearance and testimony of petitioner from the witness stand is that there was no hiatus in the service of Atkinson.
The Court of Military Appeals in Gallagher found a clear distinction in that case from the facts in Toth and accordingly found Article 3(a), supra, constitutional as applied to the facts in Gallagher.
In Toth, supra, the Court said, inter alia (350 U.S. 11, 14, 76 S. Ct. 1, 4, 100 L. Ed. 8):
'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. It has never been intimated by this Court, however, that Article I military jurisdiction could be extended to civilian ex-soldiers who had severed all relationship with the military and its institutions. To allow this extension of military authority would require an extremely broad construction of the language used in the constitutional provision relied on. For given its natural meaning, the power granted Congress 'To make Rules' to regulate 'the land and naval Forces' would seem to restrict courtmartial jurisdiction to persons who are actually members or part of the armed forces. * * *.' (Emphasis supplied.)
It is more than a coincidence that the majority opinion in Toth repeatedly emphasizes that its ruling was limited to the attempted application of Article 3(a) to 'civilian ex-servicemen,' 'civilian ex-soldiers,' or 'civilians like Toth.' The Court concludes:
'* * * We hold that Congress cannot subject civilians like Toth to trial by court-martial. They, like other civilians, are entitled to have the benefit of safeguards afforded those tried in the regular courts authorized by Article III of the Constitution.' (Emphasis supplied.)
In the instant case, very definitely Atkinson at no time pertinent hereto was a 'civilian like Toth.'
I concur in the able opinion of the United States Court of Military Appeals in Gallagher. I find, as applied to the facts in this case, Article 3(a) to be constitutional.
The application for writ of habeas corpus will be denied and the Rule to Show Cause will be discharged.