Kenneth R. Wright v. T. W. Markley, Warden, United States Penitentiary

351 F.2d 592, 1965 U.S. App. LEXIS 4338

• Court: Court of Appeals for the Seventh Circuit
• Decided: October 8, 1965
• Docket: 15137
• Status: Published

Opinion

PER CURIAM.

This is an appeal from an order dismissing and discharging a petition for a writ of habeas corpus. Robert A. Lucas, Esq., of the Gary, Indiana Bar is the court-appointed counsel on this appeal.

Petitioner, a sergeant in the United States army, was tried and convicted by a general court-martial of the crime of rape alleged to have been committed May 10, 1954. This offense was charged to be a violation of Article 120 of the Uniform Code of Military Justice, Title 10, U.S.C. § 920.

Petitioner is now incarcerated in the United States Penitentiary at Terre Haute, Indiana. Petitioner contends that the general court-martial did not have jurisdiction to try him.

Petitioner alleges that on May 10, 1954, the United States was at peace and not “in time of War or public danger”, within the purview of the Fifth Amendment, United States Constitution. He contends that he could be tried for the crime of rape only after a presentment or indictment of a grand jury since our country was not at war and a public danger did not exist when the alleged crime was committed.

Military tribunals are not governed by the procedure for trials prescribed in the Fifth and Sixth Amendments, including a trial by jury. Ex Parte Quirin, 317 U.S. 1, 41, 45, 63 S.Ct. 1, 87 L.Ed. 3; Whelchel v. McDonald, 340 U.S. 122, 71 S.Ct. 146, 95 L.Ed. 141. A general court-martial has jurisdiction to try a member of the armed forces in times of peace for the offense of rape. Owens v. Markley, 7 Cir., 287 F.2d 751.

We express our thanks ^fo SoM’t-ap-pointed counsel for the meritorious service he has rendered on this appeal.

The judgment of the District Court dismissing the writ of habeas corpus is

Affirmed.