Three indictments were returned against plaintiff in error by the grand jury in the southern district of New York. In the first of said indictments he was charged with the embezzle- [216 U.S. 559, 560] ment of certain personal property of the cadets at the United States Military Academy, upon a government reservation, to wit, the West Point Military Reservation, in the southern district of New York, in violation of 5391, Revised Statutes, as amended by the act of July 7, 1898 [30 Stat. at L. 717, chap. 576, U. S. Comp. Stat. 1901, p. 3652], and of 528 and 531 of the New York Penal Code.
In the second indictment he was charged with making and presenting to an officer of the Army, for approval, false claims upon the government of the United States for supplies furnished to the cadet mess at Wast Point, in violation of 5438, Revised Statutes (U. S. Comp. Stat. 1901, p. 3674); and in the third indictment, he was charged with making and presenting to an officer of the Army, for approval and for payment, a false claim upon the United States War Department, and upon the treasurer of the United States Military Academy in violation of 5438, Revised Statutes.
Demurrers to the indictments were overruled and they were then consolidated. The first of said indictments contained six counts, in three of which plaintiff in error was charged with grand larceny in the second degree, under the New York Penal Code, and in the other three he was charged with embezzlement of the same funds, in violation of the New York Penal Code; but the first three of said counts were nolle prossed. The defendant thereupon pleaded guilty to all three of the indictments; but before judgment was pronounced, he moved in arrest of judgment, the grounds of his motion being as follows:
This motion was overruled, and defendant was sentenced to serve a term of imprisonment of two and one-half years in the United States penitentiary at Atlanta; and, errors being assigned which raised the questions presented in the motion in arrest of judgment, the case was removed to this court by writ of error.
The statutes under which said indictments were found are as follows:
1. Section 2 of the act of July 7, 1898 (30 Stat. at L. 717, chap. 576, U. S. Comp. Stat. 1901, p. 3652):
2. Sections 528 and 531 of the Penal Code of New York:
... * *
3. Section 5438, Revised Statutes, so far as applicable to these indictments:
Messrs. Holmes Conrad and S. T. Ansell for plaintiff in error.
[216 U.S. 559, 565] Solicitor General Bowers for defendant in error.
Statement by Mr. Chief Justice Fuller: [216 U.S. 559, 566]
Mr. Chief Justice Fuller delivered the opinion of the court:
This is a writ of error brought directly to this court from the circuit court of the United States for the southern district of New York, and the grounds upon which it is rested appear to be--
First. That under the 62d article of war, 1342, Revised Statutes (U. S. Comp. Stat. 1901, p. 957), which reads: [216 U.S. 559, 567] 'All crimes not capital, and all disorders and neglects, which officers and soldiers may be guilty of, to the prejudice of good order and military discipline, though not mentioned in the foregoing articles of war, are to be taken cognizance of by a general or a regimental, garrison, or field officers' court-martial, according to the nature and degree of the offense, and punished at the discretion of such court,' a court-martial has exclusive jurisdiction of the offenses charged herein, inasmuch as plaintiff in error was an officer of the United States Army; and
Second. That the case involved the construction or application of the Constitution of the United States, and that the constitutionality of a law of the United States was drawn in question because, as is alleged, 2 of the act of July 7, 1898, is unconstitutional, in that it undertakes to delegate the power of legislation to the state legislatures.
1. It is well settled that the 62d article of war does not vest, nor purport to vest, exclusive jurisdiction in courts-martial, and that civil courts have concurrent jurisdiction over all offenses committed by a military officer which may be punished by a court-martial under the provisions of that article.
The 30th section of the act of March 3, 1863 (12 Stat. at L. 736, chap. 75, U. S. Comp. Stat. 1901, p. 955), provided that in time of war, insurrection, or rebellion certain offenses, including murder, 'shall be punishable by the sentence of a general court-martial or military commission, when committed by persons who are in the military service of the United States, and subject to the articles of war; and the punishments for such offenses shall never be less than those inflicted by the laws of the state, territory, or district in which they may have been committed.'
In Coleman v. Tennessee, 97 U.S. 509 , 24 L. ed. 1118, it was held that this statute did not confer upon courts-martial exclusive jurisdiction for the trial of the offenses mentioned.
In Grafton v. United States, 206 U.S. 333, 348 , 51 S. L. ed. 1084, 1089, 27 Sup. Ct. Rep. 749, 11 A. & E. Ann. Cas. 640, it was expressly declared that the jurisdiction of courts-martial is not [216 U.S. 559, 568] exclusive. Undoubtedly the general rule is that the jurisdiction of civil courts is concurrent as to offenses triable before courts-martial. See opinion of Attorney General Cushing, 6 Ops. Atty. Gen. 413, 419; United States v. Clark, 31 Fed. 710.
And in the present case the language of article 62 and that of 5438, Revised Statutes, and of 2 of the act of July 7, 1898, demonstrates that it was the intention of Congress that offenses committed in violation of the latter statute should be punished by the civil courts; to say nothing of the fact that it was expressly provided in 2 and prior laws, that conviction should be 'in a circuit or district court of the United States in which the offense was committed.'
There is absolutely nothing in the first proposition.
2. This is equally so of the intimated constitutional point.
By 3 of the act of March 3, 1825 (4 Stat. at L. 115, chap. 65, U. S. Comp. Stat. 1901, p. 3651), it was provided:
In United States v. Paul, 6 Pet. 141, 142, 8 L. ed. 348, 349, coming here on certificate of division, it was held by this court, speaking by Chief Justice Marshall, that the effect of this section was 'limited to the laws of the several states in force at the time of its enactment;' and it followed that by this act Congress adopted for the government of the designated places, under the exclusive jurisdiction and control of the United States, the criminal laws then existing in the several states within which such places were situated, in so far as said laws were not displaced by specific laws enacted by Congress.
Section 2 of the act of July 7, 1898, was [216 U.S. 559, 569] to the same effect, and moreover, by express language, Congress adopted such punishment as 'the laws of the state in which such place is situated now provide for the like offense.' There is, plainly, no delegation to the states of authority in any way to change the criminal laws applicable to places over which the United States has jurisdiction.
We give below the legislation on the subject.
On March 3, 1825, Congress passed:
Chap. 65. An Act More Effectually to Provide for the Punishment of Certain Crimes against the United States, and for Other Purposes.
Sec. 3. . . . That, if any offense shall be committed in any of the places aforesaid, the punishment of which offense is not specially provided for by any law of the United States, such offense shall, upon a conviction in any court of the United States having cognizance thereof, be liable to, and receive, the same punishment as the laws of the state in which such fort, dockyard, navy yard, arsenal, armory, or magazine, or other place, ceded as aforesaid, is situated, provided for the like offense when committed within the body of any county of such state. (4 Stat. at L. p. 115, U. S. Comp. Stat. 1901, p. 3651, approved March 3, 1825.)
In 1866, Congress enacted the following:
Chap. 24. An Act More Effectually to Provide for the Punishment of Certain Crimes against the United States.
Sec. 2. . . . That if any offense shall be committed in any place which has been, or shall hereafter be, ceded to and under the jurisdiction of the United States, which offense is not prohibited, or the punishment thereof is not specially provided for, by any law of the United States, such offense shall, upon conviction in any court of the United States having cognizance thereof, be liable to, and receive, the same punishment as the laws of the state in which such place is or may be situated, now in force, provide for the like offense when committed within the jurisdiction of such state; and no subsequent repeal of any such state law shall affect any prosecution for such offense in any of the courts of the United States . (14 Stat. at L. p. 13, U. S. Comp. Stat. 1901, p. 3651, approved April 5, 1866.)
This act was carried forward as 5391 of the Revised Statutes (U. S. Comp. Stat. 1901, p. 3651), as follows:
The act of July 7, 1898, upon the same subject, reads: [216 U.S. 559, 570] We are of opinion that the points attempted to be raised to justify jurisdiction are so unfounded in substance as to utterly fail of their purpose.
Writ of error dismissed for want of jurisdiction.
This section appears in the act of Congress approved March 4, 1909, modifying, amending, and revising the penal laws of the United States, to become effective January 1, 1910, as follows: