Dynes v. Hoover It is an inferior court in the most technical common-law sense of those words. It is called into existence for a special and limited purpose, and to perform a particular duty; and when the object of its creation is accomplished, it ceases to exist. The law will intend nothing in its favor. The decision of such a tribunal, in a case without its jurisdiction, cannot protect the officer who executes it. The court and the officer are all trespassers." (Wise v. Withers, 3 Cranch, 337; Ex parte Watkins, 3 Peters, 208; Mills v. Martin, 19 Johns., 32; Smith v. Shaw, 12 Johns., 267; Brooks v. Adams, 11 Pickering, 442; Duffield v. Smith, 3 Sergt. and Rawle, 599; 3 Greenleaf's Ev., § 470; Warden v. Baily, 4 Taunt., 67; Frye v. Ogle, 1 McArthur, Ap., No. 24, and Hickman, Ap., No. 17; Moore v. Bastard, 2 McArthur, 194, 200; 1 McArthur, chap. 10, § 9, p. 264, 272; Hannaford v. Hunn, 2 Carr. and Payne, 148; Wharton's American Law of Homicide, p. 52.) Two essential vices appear on the face of the proceedings of the court martial in question, either of which would alone render their whole proceedings irregular and void. 1. The finding was in a cause coram non judice, it being for an offence of which the plaintiff was never charged, and of which the court had no cognizance. 2. The subject-matter of the sentence, the punishment inflicted, was not within their jurisdiction, and is a punishment which they had no sort of permission or authority of law to inflict. (See Hickman, p. 149, 152, and 1 McArthur, 158.) 1st. The court martial was brought into existence by the order or precept of the Secretary of the Navy, and the plaintiff "legally brought before it," for the trial of his guilt or innocence of the following "charge and specification of a charge preferred by the Secretary of the Navy," and to no other legal intent or purpose whatsoever: Charge.-Desertion. "Specification. In this, that on or about the twelfth day of September, in the year 1854, the said Frank Dynes deserted. from the United States ship Independence, at New York. "J. C. DOBBIN, Secretary of the Navy." Now, here is a charge, with its specification, drawn up with every desired legal requisite of certainty and perspicuity, notifying the accused of the circumstances and facts to be brought in issue, and warning him of the evidence essential to establish his innocence. Of this charge, and of this charge only, had the court martial jurisdiction to try him, (see 2 McArthur, p, 221,) and their decision as to his guilt or innocence upon this charge, would be as absolute and final as would be the decision of any other court on matters within their jurisdiction. Dynes v. Hoover. But the court martial acquitted him of the only charge legally brought before them, the only subject-matter whereof they had cognizance, but found him guilty of another offence, of which they had no sort of jurisdiction-an offence as yet unknown to the law, not enumerated in the naval articles as one of the crimes within the cognizance of a court martialthus convicting him of an offence not included in the charge or specification before the court, but a new offence, depending upon different facts and circumstances, and against the accusation of which they gave him not the least time or slightest warning to defend himself. The finding of the court was as follows: The court "do find the accused, Frank Dynes, seaman of the United States navy, as follows: Of the specification of the charge, guilty of attempting to desert; of the charge, not guilty of deserting, but guilty of attempting to desert." This finding is in direct violation of the oath which, by the 36th article of the act of Congress for the government of the navy, each member of the court is required to take, "before proceeding to trial," that he "will truly try, without prejudice or partiality, the case now depending. And of the 38th article, which declares that "all charges on which an application for a general court martial is founded, shall be exhibited in writing to the proper officer, and the person demanding the court shall take care that the person accused be furnished with a true copy of the charges, with the specifications, at the time he is put under arrest; nor shall any other charge or charges than those so exhibited be urged against the person to be tried before the court," unless under the circumstances there enumerated, "in which case reasonable time shall be given to the person to be tried, to make his defence against such new charge.' (See Macomb on Courts Martial, § 35 and § 36, p. 26; De Hart, p. 102; Tytler, 217.) It is true that, at common law, the jury may frequently find the prisoner guilty of a minor offence, included in the charge, or of a part of the offence therein specified; as on an indictment for petit treason he may be found guilty of murder or of manslaughter, for both these offences are included in the charge, as is also the offence of manslaughter in the charge of murder; and under an indictment charging an assault with intent to murder the party, may be convicted of a simple assault only; or under an indictment charging an assault with intent to abuse and carnally know, the defendant may be convicted of an assault with intent to abuse simply. (1 Chitty's Crim. Law, 250, 251.) In these cases, every fact and circumstance which is a neces Dynes v. Hoover. sary ingredient in the offence is set forth in the indictment, and the party is enabled to determine the species of offence he will be called upon to answer, and the evidence necessary to establish his innocence. But on an indictment for felony he cannot be convicted of a misdemeanor, because the offences are distinct in their nature, and of a distinct legal character. Nor can a party be convicted, on an indictment for a specific offence, of an attempt to commit that offence. (4 Blac. Com., p. 306, note.) Thus, on an indictment for burglariously breaking and entering a dwelling-house and stealing the goods mentioned, the party may be acquitted of the burglary, and convicted of the larceny, it being included in the charge; but he cannot be acquitted of the burglary and stealing, and convicted of a burglary with intent to steal, or to commit any other felony, for they are distinct offences. (See Vandercomb and Abbott's case, 2 Leach C. L., 828 to 833; 1 Russell on Crimes, 831; Com. v. Roby, 12 Pickering, 505, 506, 507; 4 Blac. Com., 306, note.) So, on an indictment for murder, he cannot be acquitted of the murder, and convicted of an assault with intent to murder. He is before the court charged with a specific offence, and is prepared only to defend himself against that charge, and the matter therein specified; he may entirely rely upon the evidence of the very man of whose murder he is charged to prove that no homicide has been committed. It would then be in violation of every principle of law to convict him, without warning, of a different offence, depending on different facts and circumstances; thus the fundamental doctrine of the law requires the proof admissible, much less the finding or verdict, to correspond with the allegations, and to be confined to the point in issue. Courts martial, following these principles of the common law, may also find a party guilty of a minor offence included in the charge. As on a charge of desertion, they may acquit of that charge, and find the party guilty of "absence without leave," for this offence is of a like nature, and all its ingredients are included in the charge, for absence is the principal question in issue. (Tytler, 321, 322, 323; Adie, 185, 186, 187.) But attempting to desert is altogether a distinct offence, depending upon different facts and circumstances, of which the party has had no notice. He may be conscious of not having deserted, and may expect to establish his innocence of that charge by circumstances and facts which would render his being guilty of such an offence absolutely impossible. Then would it not be of the very essence of tyranny, in violation of Dynes v. Hoover. all those immutable principles of right and justice which are the foundation of martial as well as every other law, to find him guilty, and to inflict a punishment for this other offence never before the court, and of which he never had the least time or notice to make his defence? Besides, "absence without leave" is, by the British mutiny act, and the 21st article of the act of Congress for the government of the army, (April 10, 1806, 2 Stat. at Large, p. 362,) made a military offence within the cognizance of an army court martial. But "attempting to desert" is not enumerated by the articles for the government of the navy as an offence within the cognizance of a naval court martial. A naval court martial derives its sole being from, and is the mere creature of, the act of Congress, and has no jurisdiction of any other offences than such as are therein enumerated as within their cognizance. "When a new court is erected, it can have no other jurisdiction than that which is expressly conferred, for a new court cannot prescribe." (4 Inst., 200.) But it may be contended that the 32d article covers this offence, which article is in these words: "All crimes committed by persons belonging to the navy, which are not specified in the foregoing articles, shall be punished according to the laws and customs at sea.' Such a construction would be leaving the definition of crimes "at sea" indeed, and a shoreless and uncharted sea, and would render the previous minute enumeration of what offences might be tried and punished by a court martial quite useless. The probable proper construction to put on this article is, that it refers to such offences as are not of sufficient magnitude to be punished by a court martial, and leaves them to be punished according to the usages of the sea. However this may be, the offence at any rate should have been legally brought before the court by a charge and specification preferred by the proper authority, and it might then have been within the jurisdiction of the court to have decided whether or not they could take cognizance of it under the 32d article; as it is, the cause was coram non judice, and their judgment and sentence is not voidable, but absolutely void. (Hickman, 179, 149; 1 McArthur, 171; 2 ib., 221, 298, 199.) The ground on which the judgment of the House of Lords, in the Banbury case, was held not to conclude the question, "was because the proper course had not been pursued to bring the question of peerage in judgment before the Lords, and therefore it was coram non judice, for the resolutions of the Lords, in that case, were taken upon a petition from the de Dynes v. Hoover. fendant to the House itself; whereas, the proper course for the trial of the right of peerage is by petition from the claimant to the King, who thereupon refers it to the Lords." "Here was no judgment. A court can give no judgment in a thing not depending, or that does not come in a judicial way before the court." (2 Salk., 511; Burdett v. Abbott, 14 East, 106; Skinner R., 522, 524.) "If a judge of an ecclesiastical court excommunicates a party for a cause of which he hath not legal cognizance, or where the party has not been previously served with a citation or monition, nor had due notice, an action lies against him." (Beaurain v. Scott, 3 Campbell's R., 388; 3 Black. Comm., 101.) The argument of Mr. Jones and that of Mr. Gillet, upon the legality of using the penitentiary as the place of punishment, are omitted. Mr. Gillett made the following points: FIRST. The naval court martial had jurisdiction of the offence of which the plaintiff was convicted. Among the powers conferred upon Congress by the 8th section of the first article, are the following: "To provide and maintain a navy. "To make rules for the government and regulation of the land and naval forces." The 8th amendment, which requires a presentment of a grand jury in cases of capital or otherwise infamous crime, expressly excepts from its operation "cases arising in the land or naval forces." These provisions show that Congress has the power to provide for the trial and punishment of military and naval offences in the manner then and now practiced by civilized nations. In the exercise of the powers thus conferred upon the legislative department, the act of the 23d of April, 1820, (2 U. S. L., p. 45,) was passed. The 17th article of said act provides "And if any person in the navy shall desert, or entice others to desert, he shall suffer death, or such other punishment as a court martial shall adjudge.' The 32d provides "All crimes committed by persons belonging to the navy, which are not specified in the foregoing articles, shall be punished according to the laws and customis in such cases at sea.' Congress specified a limited number of offences, and among |