United States v. Ayers

4 C.M.A. 220, 4 USCMA 220, 15 C.M.R. 220, 1954 CMA LEXIS 542, 1954 WL 2280

• Court: United States Court of Military Appeals
• Decided: May 5, 1954
• Docket: No. 3765
• Status: Published

Opinions

Opinion of the Court

Paul W. BROSMAN, Judge:

We are presented in this case with the question of whether the date of December 23, 1950, is to be considered as falling “in time of war” for the purpose of a prosecution for an absence without leave originating within the continental limits of the United States. The accused, Ayers, was convicted, following trial by a general court-martial sitting at Fort Sheridan, Illinois, of desertion, at Fort Lewis, Washington, in violation of Article of War 58, 10 USC § 1530. He was sentenced to be confined at hard labor for one year, and to forfei£~$50 of his pay per month for the~same period. The convening authority approved the findings of guilty only to the.extent that they included a finding that the accused had .absented himself without leave for the period alleged — and accordingly he reduced the period of confinement and forfeitures. A board of review in the office of The Judge Advocate General, United States Army, held the findings and sentence, as approved, to be incorrect in law, set them aside, and directed that the charges be dismissed.

The absence specified was alleged to have begun on December 23, 1950. The sworn charges on which the accused was arraigned and tried were received by the officer exercising summary court-martial authority on March 18, 1953, The case reached us by means of the following question certified by The Judge Advocate General:

“Was the board of review legally correct in holding that the ‘in time of war’ provision of Article 43(a), Uniform Code of Military Justice, is not applicable to the offense of absence without leave committed within the continental United States on 23 December 1950?”

II

If the board of review is correct, then the Government is barred ⅛ this case for, in the absence of a state of war, the statute of limitations has been set at j two years for the offense of absence (without leave. Uniform Code of Military Justice, Article 43(c), 50 USC § 618. However, Article 43 (a) of the same source provides that “A person j charged with . . . absence without, leave in time of war . . . may be ■ tried and punished at any time without j limitation.” (Emphasis supplied.) . !

For compelling reasons expressed at the time, we have held in two recent cases that, for purposes of the administration of military justice, our forces in Korea were engaged in the prosecution of a war. United States v. Bancroft, 3 USCMA 3, 11 CMR 3; United States v. Gann, 3 USCMA 12, 11 CMR 12. The authorities cited and the language and reasoning used in the disposition of these cases were not sufficient, nor were they intended, to invoke the wartime provisions of the Uniform Code as to military personnel within the confines of the continental United States. Of course, this was not done for the plain reason that we were not then, as we are now, confronted by that issue. However, it was determined explicitly that the hostilities existing at that time in Korea must be equated to a state of war for purposes of military criminal law.

This conclusion was reached on the theory that — whether with or without Congressional assent — all of the practical consequences of a legally declared war were present as to United States troops in the Korean area — and that the yardstick of practicality must be used to measure the problems before us in Bancroft and in Gann. To put the matter only a little differently, we felt there that the reasons underlying certain provisions of military criminal law operative only in time of war were fully served by the Korean situation. Thus, we concluded, since the reason for the rule existed, so also did the rule. It would appear, therefore, that the two cited cases furnish us at the same time with the resolution of an analogous issue and an approach to the one before us now — that of practicality, of broad, realism, as distinguished from narrow legalism. Let us now scrutinize the problem of the cause at bar through the spectacles of the pragmatism implicit in the Bancroft and Gann cases.

Ill

Recent civilian cases seem to support the applicability of such a practical approach in the present setting.¹ The Supreme Court of Texas recently passed on a claim for accidental death benefits with respect to an insured officer who was killed while travelling under military orders to Fairbanks, Alaska. There he was to perform official duties in connection with the construction of an air base. Western Reserve Life Ins. Co. v. Meadows, — Texas —, 261 SW2d 554, cert den 347 US 928, 98 L ed —, 74 S Ct 531. The insurance policy in suit provided that the obligation to pay benefits would be void if the insured “shall be in military, naval or allied service in time of war at the date of the accident.” The Texas court indicated that, within the framework of the insurance contract, the term “war” might be given its “plain, ordinary and generally accepted meaning” of “war in fact”; or, on the other hand, might be accorded a more limited construction — that is one signifying “technical war,” or “legal war,” which is to say a war declared by Congress. The opinion suggested that, although the latter alternative be accepted, and if there be required legislative recognition of the existence of “war,” this has been supplied in ample measure by numerous Congressional enactments. The court emphasized that (at page 556) :

“. . . Congressional support of the action in Korea, which we know was in fact war on a large scale, was necessary, and was freely and generously given in many Acts of Congress by which provision was made for support of the armed forces employed, for increased military man power and equipment, and for economic stabilization. Many of those Acts of Congress, including vast appropriations for the support of the armed forces in Korea, are referred to in the dissenting opinion of Chief Justice Vinson in the steel mill seizure case, Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 72 S. Ct. 863, 96 L. Ed. 1153, 1215, 1216-1218, 26 A. L. R. 2d 1378. Reference is there made to the one hundred thirty billion dollars appropriated by Congress for our armed defense and for military assistance to our Allies since the June, 1950, attack in Korea, to the Mutual Security Act of 1951, 22 U. S. C. A. § 1651 et seq., to the grant by Congress of authority to draft men into the armed forces, to the increase in appropriations to the Department of Defense, which had averaged less than thirteen billion dollars per year for the three years before the attack in Korea, to forty-eight billion dollars for the year 1951. There were other Acts of Congress recognizing the existence of war in Korea and enabling the government to prosecute it with vigor and efficiency, such as the Servicemen’s Indemnity Act, 38 U. S. C. A. § 851 et seq., a new GI Bill of Rights, 38 U. S. C. A. § 694 et seq., the 1950 Amendment to the Revenue Act, 26 U. S. C. A. and again more appropriations. Those Acts were in acknowledgment of the fact of war in which the Nation was engaged. And to use the language of Justice Grier in his opinion in the Prize cases above quoted, if it is necessary to the technical existence of war that it have legislative sanction, the Acts of Congress above referred to gave sanction.”

The court went on to express its conclusion that the parties to the insurance contract had not intended to refer therein to a “technical war,” but instead had meant to adopt a realistic interpretation of the word “war.” In this connection the court said:

“We are unwilling in deciding this case to shut our eyes to what everyone knows, that there has been and was when the insured was killed, actually and in reality a war in Korea in which the United States has been seriously engaged.”

A Federal District Court, in Weissman v. Metropolitan Life Ins. Co. 112 F Supp 420 (SD Cal), took a similar position in construing an insurance contract proviso and denying double indemnity because this country was “at war.” There the following language was used:

“In the case at bar (without admitting it was necessary under the circumstances for Congress to baptize the Korean conflict by giving it the name of ‘war’) it is plain there certainly has been legislative sanction thereof. Because Congress has seen fit to provide money necessary to carry on the conflict, furnish arms, munitions, ships and troops and to proceed in the same manner as if there had been a formal declaration of war, under the authority of the Prize Cases, supra, this court certainly is justified in finding that if such a declaration were necessary, nonetheless, the conflict has received the sanction of Congress.”

The Iowa Supreme Court also recently ruled that the Korean hostilities constituted “war” within the meaning of an insurance policy. See Langlas v. Iowa Life Ins. Co., — Iowa —, — NW 2d — (April 7, 1954). The court remarked :

“The unreality of adopting an interpretation which would hold the Korean struggle not to be a war within any reasonable meaning is pointed up by the fact that as of March 28, 1952 (three days after the insured met his death in the fighting), total United States casualties were 106,-956, with 16,739 killed and 77,651 wounded and 9,916 missing in action. Of all wars in which this country has been engaged, only the two World Wars and the Civil War exceeded the Korean struggle in cost, in casualties, and money.

“. . . Many conflicts have been referred to as ‘wars’ when there was no formal declaration. Thus, in the Iowa Code of 1950, Section 427.3, paragraph 2, are references to the ‘war of rebellion’ and ‘Indian wars.’ The Philippine Insurrection has been held to be a war within the meaning of an exclusionary clause in an insurance contract. LaRue v. Kansas Mutual Life Insurance Company, 68 Kan. 539, 75 P. 494. Likewise the Civil War, in the Prize Cases (The Army Warwick) 2 Black 635, 17 L. Ed. 459; and the Boxer Uprising in China, Hamilton v. McClaughry, 136 Fed. 445. The Maine Supreme Court has put it in this pertinent language: ‘But every forcible contest between two nations, de facto, or de jure, is war. War is an existing fact, and not a legislative decree. Congress alone may have power to “declare” it beforehand, and thus cause or commence it. But it may be initiated by other nations, or by traitors, and it then exists, whether there is any “declaration” of it or not. It may be prosecuted without any declaration ; or Congress may, as in the Mexican War, declare its previous existence.’ Dale v. Merchants Mutual Marine Insurance Company, 51 Me. 465, 470. In Stankus v. New York Life Insurance Company, supra, page 689 of 44 N. E. 2d, the Massachusetts Supreme Court said: ‘A conflict between the armed forces of two nations under authority of their respective governments would be commonly regarded as war.’ On page 688 from the same citation is this statement: ‘But the existence of a war is not dependent upon a formal declaration of war.’ Hostilities on the high seas between naval forces of France and the United States were held to be a ‘war’ although there was no declaration. Bas v. Tingy, 4 Dall. 37, 1 L. Ed. 731. Webster’s definition is: ‘The state or fact of exerting violence or force against another, 'now only against a state or other politically organized body.’ ”

A New Jersey court was faced with an identical problem. Pointing out that the word “war” must be given a “realistic interpretation” when used in private contracts, the court reached the conclusion that the hostilities in Korea constituted war within the meaning of the insurance policy’s terms.² Various enactments were adverted to in support of the court’s statement that “Congress (as well as every person in the civilized world) knows that the United States is at war in Korea.”³ Stanbery v. Aetna Life Ins. Co. 26 NJ Super 498, 98 A2d 134. It was precisely for the reasons set out in the preceding cases that we reached the conclusion expressed in the Bancroft and the Gann cases, supra.

These civilian cases present instances in which, despite the familiar judicial tendency to construe insurance policies in favor of an insured person, recovery was denied because (1) “war” was intended by both insurer and insured to receive a realistic interpretation, and (2) because — conceding arguendo that legislative sanction for war is required —numerous statutes attest that this understructure was amply supplied in the instance of the Korean imbroglio. Is this Court to assume that Congress charged its members to be less realistic in construing Article 43 (a) ? Thus, although hostilities in Korea were being conducted under the banner of the United Nations, the significant feature to our notion is that American personnel and materiel in tremendous quantities were being shipped to the front. Certainly, seen from state-side, most of the attributes of a declared war were undeniably present. Apart from the enormous size of the earlier operation, we can, in fact, discern no significant difference between the Korean phenomenon and that found during the struggle described as World War II.

IV

In connection with the civilian eases mentioned earlier, we must emphasize that in Western Reserve Life Ins. Co. v. Meadows, supra, no death or specific incident in Korea was before the court for consideration. The remaining authorities cited do not indicate — or even suggest — that a different result would have been forthcoming had the insured been killed at a place other than in Korea. Yet it is insisted that we must restrict the ambit of Article 43(a) to absences and desertions having their origin in the Korean zone of operations.

An attempt to bolster this contention is made through the assertion that an anomaly would exist if we were to hold that absences originating within the United States are not subject to the statute of limitations at a time when they are subject to the limitations of the Table of Maximum Punishments. The premise seems to be that, since the President did not see fit to suspend the Table of Maximum Punishments as to desertions occurring within the continental limits of the United States, such desertions may not properly be regarded as having transpired in time of war.

The unsoundness of this premise may be demonstrated by reference to events following World War II. De facto peace —that is, an end to the “shooting war” —arrived during the fall of 1945. A cessation of hostilities was proclaimed on December 31, 1946. Pres Proel 2714. On January 19, 1946, the President terminated the suspension of certain portions of the Table of Maximum Punishments, save as to occupied territories. Executive Order 9683. On August 24, 1946, he terminated all remaining suspensions on maximum punishments. Executive Order 9772. Yet, so far as Congress was concerned, World War II for many purposes continued. Not until July 25, 1947, in fact, did Congress by Joint Resolution proclaim that World War II had come to an end insofar as the prosecution of wartime desertion was concerned. 61 Stat 449. For certain other purposes World War II continued until 1951. State v. Gibson, 258 Ala 512, 64 So2d 75; Miley v. Lovett, 193 F2d 712 (CA 4th Cir), cert den 342 US 919, 96 L ed 687, 72 S Ct 366. Accordingly, any desertion occurring prior to July 25, 1947, is safely beyond the operation of the statute of limitations — and, indeed may be prosecuted to this very day. It is to be noted that this result obtains as to absences or desertions which began even subsequent to the time at which the President reimposed limitations on the punishment for such offenses. And the fact that the absence originated at a place far removed from conflict — or, indeed, at a time when all hostilities had ceased both in Europe and Asia — is wholly without significance.

Congress simply intended that any unauthorized absence or desertion which occurred prior to the Joint Resolution of July 1947 should be subject to prosecution despite the passage of years. In determining what absences during the course of the Korean hostilities were meant by Congress to fall within the ambit of Article 43(a), recourse may be had to a more specific applicability-index. In accordance with the pragmatic approach delineated earlier in this opinion, we can discern no difference in seriousness between a desertion from a main line of resistance in the Korean area and one from front line combat in the course of a fully declared war. Therefore we would be required to regard desertion from hostilities in Korea as falling within the purview of Article 43(a). Cf. United States v. Bancroft, supra; United States v. Gann, supra. When asked— as now — to differentiate in result between an unauthorized absence occurring within the continental United States and one arising in Korea, we recognize immediately that, whether the defection occurs at a port of embarkation on the eve of a shipment of personnel, or following a unit’s arrival in Korea, we are faced with essentially the same problem. In either instance the Armed Forces are deprived of a necessary — perhaps vitally necessary — ■ combat replacement. In both instances the military is faced with a dilemma. Either its authorities must organize a costly search for the absentee, or the Armed Force concerned is required to risk the loss of his services permanently. Clearly, too, the deleterious effect on morale of unauthorized absence is more substantial when the absentee may be escaping the hazards and risks of transfer to the Korean conflict than when — as in “peacetime” — he can evade no more than the comparatively minor inconveniences of service life.

In peacetime, too, unauthorized absentees are ordinarily apprehended without difficulty, and no undue burden is placed on the Armed Forces by a rule requiring dispatch in the prosecution of offenders. However, under the disorganization and distractions of war, serious obstacles are apt to be encountered — both at home and abroad — in the apprehension of such culprits by persons and agencies concerned primarily with emergency functions of gravest importance to the national welfare. Admittedly there will be instances when, even during wartime, an absentee may be apprehended readily. Nevertheless, it is undeniable that the existence of hostilities increases not only the incentive for unauthorized absence, but also the ability to escape apprehension. It was largely for this reason, no doubt, that the pressures inherent in the statute of limitations were removed from the services during such a period. Although phrased somewhat differently, is it not as arguable in the case at bar — as it was in Bancroft— that where the reason for the rule of limitation fails, then the rule fails with it? And has not the reason failed here as completely as it would have done in the case of an international conflict declared in due and ancient form? We are sure that it has.

The difficulty of apprehending and punishing unauthorized absentees in wartime was thoughtfully considered during the deliberations leading to the adoption of the Uniform Code. Hearings before House Armed Services Committee, 81st Congress, 1st Session, on HR 2498, page 1039. There Robert W. Smart, Esquire, professional staff member of the House subcommittee, said in speaking of a' closely related matter: “In peacetime, I do not think you are going to have so much difficulty in apprehending these people within the statutory period of limitations.” Again, in discussing the unauthorized absentee, he stated: “In peacetime I still say that they will apprehend him in 9 cases out of 10, because of your regular troop activity, and the greater control over them. That is contrasted to wartime situations where you have great fluidity and movement of people all over the country and in all foreign countries.” House Hearings, supra, page 1041. Mr. Smart might well have added as an additional aggravating factor the high ratio during a “war situation” of untrained clerical, supervisory, and other personnel — with resultant inaccuracies in the maintenance of personnel accounting paper work and related activities.

We believe it reasonable to assume from the foregoing that the removal of the statute “in time of war” was realistically conditioned by Congress on the existence of a state of affairs under which persons absent without proper authority might evade punishment through the running of the peacetime limitations rule. The risk of this latter was distinctly present after June 1950 for the reason that the stresses of war — de jure or de facto — may have been expected to preclude the maintenance of an adequate police force, and because inexperienced and overworked record custodians might understandably fail to note and to act properly with respect to an absence. The possibility that such offenders should go unpunished, while their fellows in Korea— who did not run away quite so precipitately — would stand amenable to prosecution, despite the lapse of the peacetime statutory period, might easily disturb the most placid student of the problem, and appears to have disturbed the Congress as well.

Furthermore, it is obvious that modern integrated war operates to subject troops to the possibility of rapid transfer — often by air — to any point on the world’s surface at which hostilities are blazing. Units within the zone of the interior are, and must necessarily be, subject to distinctly higher requirements of combat readiness than during a previous period when a combat zone was more isolated. We entertain no doubt that the realities of atomic-age warfare were thought by the Congress to require measures which would insure combat readiness even of units located within the United States.

Admittedly the statute of limitations applicable to a particular offense is not to be regarded as a part of the punishment for that offense. For this reason a period of limitation may be extended subsequent to the commission of a crime without violating proscriptions against ex post facto legislation. See, e.g., United States v. Schauf, 2 CMR (AF) 325; 15 Am Jur, Criminal Law §342; 22 CJS, Criminal Law § 224. But, although no part of the punishment, it is undeniable that a “long” statute serves as an added deterrent to the commission of crime — since it decreases the possibility of escaping successful prosecution for a contemplated offense, and thus enhances the risk associated with that offense.

The gravity of wartime desertion and absence without leave — a gravity which under modern conditions of mobile warfare is largely independent of where the crimes occur — together with the probability that, if a short period of limitations were applicable, these offenses would carry their own immunity, convinces us that Congress intended Article 43 (a) to apply during the hostilities in Korea even to unauthorized absences originating within the United States. Certainly the reasons for authorizing unlimited prosecution for state-side desertions during the time of the Korean fighting seem as understandable as those which underlay Congress’ decision to exclude from the statute of limitations desertions which followed the termination of hostilities in World War II, but preceded the Joint Resolution of July 25, 1947. Moved by what we conceive to be the clear policy underlying Article 43 (a), we must hold that no limitation applies to unauthorized absences, whether from a unit located in Korea or within the continental limits of the United States.

V

Certain concluding observations seem fitting. First, we must emphasize that the absence with which we are presently concerned began at a time when large-scale hostilities were in progress in Korea, and not merely during a period of what has been characterized as “cold war.” Secondly, there is involved here no question of purloining from Congress the power to declare war, or not to declare it. The Articles of War and the Uniform Code — on both of which the instant prosecution may be said to be premised — derive from Congress alone, and not from any other branch of the Government. It seems to us, therefore, that there is no need to consider the constitutional division of powers between the executive and legislative branches of the Government. Instead we are concerned only with the intent and purpose of the latter arm in the exercise of its power. Finally, in view of the fact that the phrase “time of war” appears in several distinct Articles in the Uniform Code, supra — e. g., Articles 43, 90 and 106 — we are constrained to point out that its meaning, as it may be used in any particular Article, must be determined with an eye to the goal toward which that Article appears to have been directed.⁴ This cautious and individualized approach toward Articles of the Code — far from being incongruous — seems dictated by the precedent of Congressional intent in dealing with the problems of World War II. Upon the termination of actual hostilities in World War II, Congress indicated unmistakably that it wished the War to terminate for certain purposes, but allowed it to remain in effect for others. Our concern in coping with this and other legal problems arising out of the Korean situation must be with determining as a matter of interpretation whether, within the framework of Congressional intent, war existed for the purposes of the specific provision under consideration.

VI

Accordingly, the decision of the board of review is reversed, and the case is remanded for further proceedings not inconsistent with the views expressed in this opinion.

Judge LatimeR concurs.

1 No reference has been made in the body of the opinion to United States v. Smith, 342 US 225, 96 L ed 252, 72 S Ct 260, and related inferior court cases, dealing with Federal legislation suspending the running of the statute of limitations in fraud cases “when the United States is at war.” This omission was advised — for the plain reason that the bearing of the Korean conflict on the problem there was in no slightest degree relied on by counsel or considered by the Court. Under no accepted theory of case interpretation of which the majority is aware may it be said that these decisions can help us here.

2 The realism of the New Jersey court is in line with that expressed in New York Life Ins. Co. v. Bennion, 158 F2d 260 (CA 10th Cir) cert den 331 US 811, 91 L ed 1831, 67 S Ct 1202. There the court concluded that a death occurring on December 7, 1941, took place while the United States was “at war” — with the result that the insured’s beneficiaries were precluded by the policy from recovering double indemnity for an accidental death. The court states: “When one sovereign attacks another with premeditated and deliberate intent to wage war against it, and that nation resists the attacks with all the force at its command, we have war in the grim sense of reality. It is war in the only sense that men know and understand it. Mankind goes no further in his definitive search — he does not stand on ceremony or wait for technical niceties. To say that courts must shut their eyes to realities and wait for formalities, is to cut off the power to reason with concrete facts. We cannot believe that the courts are deprived of the power to deal with this vital question in a practical and realistic sense.” The Massachusetts Supreme Court considered a similar problem resulting from the death of a sailor on the U.S.S. Reuben James in October 1941. The court posed the possibility that even at that time the United States was engaged in a “war.” Stankus v. New York Life Ins. Co. 312 Mass 366, 44 NE2d 687.

3 North Dakota statutes enacted during World War II authorized loans to persons who had been members of the armed forces of the United States while the United States was at war. In December 1951 the Attorney General of North Dakota ruled that veterans of more than thirty days’ service during the Korean hostilities were eligible for such loans. It was stated: “We are informed by the newspapers and radio that there are many thousands of American soldiers, sailors, Marines and airmen now engaged with soldiers of North Korea and China in open warfare. Can there be any doubt that the United States is now at war in Korea? We think not.” See New York Times for December 28, 1951, page 2, column 4.

The New York Times of March 20, 1953, page 1, column 1, reports an expression of opinion by President Eisenhower with respect to the nature of the Korean fighting. The President “agreed with Clausewitz, the German warrior-philosopher, that there were all kinds of different wars, but he did not agree with President Truman that what was going on in Korea was a ‘police action.’ It would be his upbringing, he remarked, but he was inclined to think that Korea was a ‘war.’ ”

4 The cases construing “war” within the meaning of insurance policies form a close parallel to our present problem. There the courts are inquiring into the basic purpose of the insurer and insured in excluding the payment of double indemnity benefits for death arising from military service in time of “war.” See Langlas v. Iowa Life Ins. Co. supra. We are concerned with the purpose of Congress in conditioning various legal consequences on a state of “war.”