Dynes v. Hoover.

them desertion; and then, in the thirty-second article, made provision for all possible cases which could occur in the naval service.

Among the offences which may be committed, is the attempt to desert. Desertion is where a person, bound by his enlistment to remain in service, in violation of his duty escapes from the control of those in command. An attempt to desert is where the motive to desert is conceived, and an effort made to carry it into effect, but which is not fully accomplished, owing to the want of success, or to a change of purpose. Such an offence deserves punishment in a degree but little below successful desertion. It is clearly one of the unspecified offences provided for in the 32d article.

The 35th article provides for the appointment of courts martial. These courts are created for the purpose of trying all cases arising in the naval service.

The 38th article provides, that charges shall be made in writing, which was done in this case. It appears, by the record, that the court was lawfully constituted; that the charge was made in writing; that Dynes appeared and pleaded to the charge. If he had been found guilty of desertion, no complaint could have been made against the conviction for want of jurisdiction in the court. But, as it appears that the court, instead of finding him guilty of the high offence of desertion, which authorizes the punishment of death, convicted him of the inferior offence of attempting to commit the crime, it is assumed that the court had no jurisdiction of the case. This assumption cannot be sustained.

It is a well-settled rule, that where a person is charged with a high offence, he may be convicted of a lower one of the same class.

In the People v. Jackson, 3 Hill N. Y. R., 92, Cowen, J., in delivering the opinion of the Supreme Court, said:

"The case is, in principle, like a conviction of manslaughter under an indictment for murder; or of simple larceny, under an indictment for burglary or robbery. The indictment charges facts enough, and more than enough, to make out a misdemeanor; and the prosecution in such case is never holden to fail, merely because all the alleged circumstances are not proved, if such as are proved make out a crime, though of an inferior degree. This has been uniformly held by the English courts, where the crime proved is of the same generic character with that charged; for instance, where the proof is of an inferior felony, and the indictment charges a higher." In the People v. White, 22 Wen., 167, 176, the Supreme Court of New York laid down the same rule.

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Roscoe, in his work on Criminal Evidence, p. 99, cites numerous cases to prove that this rule is correct and sound. The same principles are laid down in Phillipps's Evidence, p. 203.

In Chitty's Criminal Law, 1st vol., pp. 250, 251, the same rule is stated, and many cases cited to prove it correct.

These rules are equally applicable to court-martial cases. Writers on courts martial lay down similar rules.

O'Brien says: "When the offence named in the charge admits of less degrees of criminality, the court may find the specification to amount to only one of these lesser degrees of the same crime." P. 265.

De Hart says: "In the deliberation of the court upon the finding to be declared, it is necessary also to observe the distinctions which may be made between the crime as alleged in the charge, and the degree of offence proved. A court martial, therefore, may in some instances find a prisoner guilty of the offence in a less degree than that stated. For example, a prisoner charged with desertion may be acquitted of the charge, and found guilty of absence without leave. Here it 18 manifest that the offence proved is of the same character as the one cliarged, but differing in degree, arising from the intention of the accused party. So, in all such, or similar findngs of a court martial, must there exist a kindred nature between the offences, as it would clearly be a violation of justice to find a prisoner guilty of a crime differing in kind, and therefore not depending upon degree of culpability, from that with which he stands charged."

"It is evident, too, that as a prisoner stands charged with a specific offence, and necessarily defends himself from the accusation as laid, a court martial, although empowered to find him guilty in a less degree, cannot find a higher degree of guilt than that alleged in the charge." Pp. 184, 185.

Simmons says: "It is scarcely necessary to remark, that the punishments peculiar to desertion cannot be awarded on conviction of absence without leave, however aggravated; and that an offender, charged with desertion, may be found guilty of the minor crime, absence without leave, and receive judgment accordingly." Pp. 338, 339.

These authorities show that the same rule which prevails in the judicial courts is applied by military tribunals, where less technical nicety prevails. The great object in view in courts martial is to secure justice in the simplest manner possible. De Hart says, (p. 146,) "The same technical nicety which courts of civil jurisdiction observe in criminal cases is not desirable or necessary in the proceedings of a court martial, and

Dynes v. Hoover.

exceptions made to form or matter are only admitted by them. when such appear essential to abstract justice." Certainly, abstract justice does not, in this case, require technical nicety. Justice has been fully administered, in a manner common to criminal tribunals and courts martial, and then no error has been committed.

The authorities above cited show that, on a charge for a higher offence, the accused could be tried and convicted of a less one of the same generic character. Were this not so, if the proof failed to show the accused guilty of the higher offence, he would escape all punishment, as the trial and acquittal for such higher offence might be pleaded in bar to an indictment for the inferior one. The court having had unquestioned jurisdiction in the case presented in the charge and specification contained in the record, it clearly included whatever could be tried under them. The cases show that the accused could be tried for the lesser offence covered by the more extensive one, formally presented against him. It follows, that the court had ample jurisdiction to try and determine it. Having the authority to try the plaintiff, the decision upon the question of his guilt is conclusive upon him, and is not the subject of review in this court; though, if it were, its correctness would not be questioned after reading the evidence.

SECOND. As the court had jurisdiction, no errors committed in its exercise can be reviewed or corrected by this court.

Courts martial have original jurisdiction in all offences committed by persons in the naval service, when convened according to law, and such offences are brought to their consideration in the manner specified in the statute. No reviewing tribunai has been established, although the Secretary of the Navy and the President, in effect, act as revising officers, where their concurrence is required before the adjudication of the court can be carried into effect. The decisions of courts martial are as conclusive as those of any other tribunal. Their jurisdiction is general over a class, and is exclusive as to all naval offences. Whether they exercise it wisely or erroneously, while they keep within such jurisdiction, is not the subject of review by other courts. The matter becomes res judicata.

In this case, the question of the guilt of the plaintiff is finally and conclusively settled. The court had full power to direct punishment. In some cases the statute defines that punishment, but it is generally left to the discretion of the court trying the accused.

The plaintiff insists that the court exceeded its jurisdiction in requiring him to be imprisoned for six months, at hard labor, in the penitentiary of the District of Columbia. The 32d arti

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cle of the act of 1800 is referred to as proof of this. It 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 in such cases at sea."

It is contended by the plaintiff, that the punishment adjudged is not according to the laws and customs in such cases at sea. But this does not appear. Those prescribed in the statute itself are applicable to the cases therein specified. The present case relates to those not distinctly enumerated in the statute, but to such as are authorized by the laws and customs in cases at sea. Who shall determine this question? Is it a question of law, or of fact?

If it is a question of law, it was clearly one for the court martial sitting to determine, and their decision is final, and not reviewable here. It was the duty of that court to pass upon this very question, when they were determining the punishment to be inflicted. It was clearly within their jurisdiction, and it was their duty to consider and pass upon it. They did so, and their decision is binding upon the parties to that trial, and cannot be reviewed here.

If it were a question of fact, it was equally the duty of the court martial to consider and determine it upon the evidence before them; and that determination is equally conclusive as if it were a question of law.

It is clear, that the question of punishments authorized by the laws and customs of sea is one purely of fact. Such customs and laws are not written in books, but exist as matters of fact, resting in tradition and practice. This court cannot know them as a matter of law, and certainly not as a matter of fact. How can this court say that imprisonment at hard labor is not a common punishment for offences, where not specified in the statute, in case of offences at sea? Imprisonment is clearly one mode of punishment for many offences known to our laws, including those regulating the naval service, although not specified in words. There are some thirty crimes specified in the statute, where the punishment is within the discretion of the court martial. This may be, by being shut up in the hold, or confined on the deck of a ship, or confinement at such place, at sea or on land, as the court think proper. The sentence may include hard labor or not, at the discretion of the court.

There is nothing in the statute to show that the undefined crimes and punishments may not be dealt with in the same manner. No law or usage is shown in the record on this subject. It follows, that there is no law or usage to restrain the

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court in relation to the punishment that may be inflicted in the non-enumerated cases. If the plaintiff had believed that, in adjudicating the punishment, the court martial had exceeded the customary and lawful punishment for such offences, he should have framed an issue of fact upon that point, and have gone to the jury upon it, instead of raising an issue of law, where such fact cannot be determined. Instead of doing so, he comes here and asks this court to determine, as a matter of fact, the laws and usages of the sea, where the statute has failed to define them. This court cannot be lawfully called upon, in suits of law, to pass upon any such question.

The very points now in dispute were legitimately before the court martial for its determination. The accused could be heard upon all questions of law and fact. He gave such evidence, as to both, as he saw fit. The court considered the case as presented, and disposed of these same questions as a part of its duty, and thus they become finally and conclusively settled; and the proceeding having been approved by the Secretary, this court is bound to consider them rightfully settled. But, if it should not, still the adjudication is binding upon it. This view of the case is sustained by the highest authority.

In Martin v. Mott, 12 Wheat., pp. 19, 29, 30, this court held that "the authority to decide whether the exigencies contemplated in the Constitution of the United States and the act of Congress of 1795, in which the President has authority to call forth the militia 'to execute the laws of the Union, suppress insurrections, and repel invasions,' have arisen, is exclusively vested in the President, and his decision is conclusive upon all other persons."

In Watkins case, 3 Peters, 193, p. 202, the question of the effect of a judgment was fully considered in this court. In delivering the opinion, Story, J., said:

"A judgment, in its nature, concludes the subject on which it is rendered, and pronounces the law of the case. The judg ment of a court of record, whose jurisdiction is final, is as conclusive on all the world as the judgment of this court would be. It is as conclusive on this court as it is on other courts. It puts an end to inquiry concerning the fact, by deciding it."

In Wilcox v. Jackson, 13 Peters, 498, p. 511, this court, speaking of the conclusiveness of judgments, said:

"This proposition is true in relation to every tribunal acting judicially, whilst acting within the sphere of their jurisdiction, where no appellate tribunal is created; and even when there is such an appellate power, the judgment is conclusive when it only comes collaterally into question, so long as it is unreversed."