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Opinion of the Court.

343 U.S.

in the present action, shall threaten or constitute violation of the antitrust laws. Cf. United States v. Reading Co., 226 U. S. 324, 373.

Judgment affirmed.

MR. JUSTICE BLACK is of opinion that the judgment below is clearly erroneous and should be reversed.

MR. JUSTICE CLARK took no part in the consideration or decision of this case.

Syllabus.

MADSEN v. KINSELLA, WARDEN.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE FOURTH CIRCUIT.

No. 411. Argued January 8, 1952.—Decided April 28, 1952.

The United States Court of the Allied High Commission for Germany

had jurisdiction, in 1950, to try petitioner, a civilian citizen of the United States who was the dependent wife of a member of the United States Armed Forces, on a charge of murdering her husband, in October 1949, within the United States Area of Control in Germany, in violation of § 211 of the German Criminal Code. Pp. 342-362.

1. Both United States courts-martial and United States Military Commissions or tribunals in the nature of such commissions had jurisdiction in Germany in 1949–1950 to try persons in the status of petitioner on the charge against her. Pp. 345–355.

(a) The jurisdiction of United States courts-martial over this case was concurrent with, not exclusive of, that of the occupation courts. Pp. 345–355.

(b) The provisions added in 1916 by Articles 2 and 12 of the Articles of War, extending the jurisdiction of courts-martial over civilian offenders and over certain nonmilitary offenses, did not deprive military commissions and other military tribunals of whatever jurisdiction they then had over such offenders and offenses, since that concurrent jurisdiction was preserved to such commissions and tribunals by Article 15. Pp. 350–355.

2. The United States Courts of the Allied High Commission for Germany were, at the time of the trial of petitioner's case, tribunals in the nature of military commissions conforming to the Constitution and laws of the United States. Pp. 356–360.

(a) The fact that the occupation statute took effect prior to the date of the crime did not vitiate the constitutional authority for petitioner's trial by military commission. P. 360.

3. Petitioner and the offense charged against her came within the jurisdiction assigned to the court which tried her. Pp. 360–362.

(a) Military Government Ordinance No. 31 expressly gave to the occupation courts jurisdiction over civilian men and women who were subject to military law, and petitioner was a “person subject to military law” within the definition of Article of War 2 (d). Pp. 360–361.

(b) The requirement of Article 7 of Military Government Ordinance No: 31, that no person subject to military law shall be

Opinion of the Court.

343 U.S.

case.

brought to trial for any offense "except upon authorization of the Commander-in-Chief, European Command," was satisfied in this

P. 361.

(c) The German Criminal Code was applicable to petitioner's offense by virtue of its express adoption by the United States Military Government. Pp. 361-362.

(d) The United States expressly required that its civilians be tried by its occupation courts rather than by the German courts. P. 362.

4. The jurisdiction of the United States Courts of the Allied High Commission for Germany to try petitioner being established, the judgment of the Court of Appeals affirming the discharge of the writ of habeas corpus for petitioner's release from custody is

affirmed. P. 362. 188 F. 2d 272, affirmed.

In a habeas corpus proceeding seeking petitioner's release from federal custody, the District Court discharged the writ and remanded petitioner to the custody of respondent. 93 F. Supp. 319. The Court of Appeals affirmed. 188 F. 2d 272. This Court granted certiorari. 342 U. S. 865. Affirmed, p. 362.

Joseph S. Robinson argued the cause for petitioner. With him on the brief were Dayton M. Harrington and James D. Graham, Jr.

Robert W. Ginnane argued the cause for respondent. With him on the brief were Solicitor General Perlman, Assistant Attorney General McInerney, Beatrice Rosenberg, J. F. Bishop and John M. Raymond.

MR. JUSTICE BURTON delivered the opinion of the Court.

The principal question here is whether a United States Court of the Allied High Commission for Germany had jurisdiction, in 1950, to try a civilian citizen of the United States, who was the dependent wife of a member of the United States Armed Forces, on a charge of murdering her husband in violation of $ 211 of the German Criminal

341

Opinion of the Court.

Code. The homicide occurred in October, 1949, within the United States Area of Control in Germany. For the reasons hereafter stated, we hold that such court had that jurisdiction.

The present proceeding originates with a petition for a writ of habeas corpus filed by petitioner, Yvette J. Madsen, in the United States District Court for the Southern District of West Virginia, seeking her release from the Federal Reformatory for Women in West Virginia where she is serving a sentence imposed by a United States Court of the Allied High Commission for Germany. She contends that her confinement is invalid because the court which convicted and sentenced her had no jurisdiction to do so. The District Court, after a hearing based on exhibits and agreed facts, discharged the writ and remanded petitioner to the custody of the respondent warden of the reformatory. 93 F. Supp. 319. The Court of Appeals affirmed. 188 F. 2d 272.

188 F. 2d 272. Because of the importance and novelty of the jurisdictional issues raised, we granted certiorari. 342 U. S. 865.

I. Petitioner's status in Germany.-Petitioner is a native-born citizen of the United States who lawfully entered the American Zone of Occupied Germany in 1947 with her husband, Lieutenant Madsen of the United States Air Force. In 1949, she resided there, with him, in a house requisitioned for military use, furnished and maintained by military authority. She was permitted to use the facilities of the United States Army maintained there for persons in its service and for those serving with or accompanying the United States Armed Forces. In brief, her status was that of a civilian dependent wife of a member of the United States Armed Forces which were then occupying the United States Area of Control in Germany.

October 20, 1949, following her fatal shooting of her husband at their residence at Buchschleg, Kreis Frankfurt, Germany, she was arrested there by the United

Opinion of the Court.

343 U.S.

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States Air Force Military Police. On the following day, before a “United States Military Government Court," I she was charged with the murder of her husband in violation of $ 211 of the German Criminal Code. In February, 1950, she was tried by "The United States Court of the Allied High Commission for Germany, Fourth Judicial District.” 3 That court was composed of three United States civilians, two of whom had been appointed as district judges and one as a magistrate by or under the authority of the Military Governor of the United States Area of Control. The court adjudged her guilty and sen

1 See United States Military Government Ordinance No. 31, August 18, 1948, 14 Fed. Reg. 124-128. See Appendix, infra, p. 365.

2 The agreed statement of facts states:

“4. Section 211 of the German Criminal Code reads as follows in English translation:

* Murder-Mord “ 211. (As in force prior to 4 September 1941). Whoever intentionally kills a human being is guilty of murder if the killing was accomplished with premeditation, and shall be punished by death.

211. (As amended 4 September 1941, RGBI I, 549). The murderer shall be punished by death.

A murderer is hereby defined as one who kills a human being out of the morbid desire to kill (Mordlust);

"'For the satisfaction of sexual desire;
“For cupidity (Habgier) or any other base motives;

“ 'In a treacherous or cruel manner or by means causing common danger, or

'In order to make possible or to conceal another offense. “ 'If, in especially exceptional cases, the death penalty is not suitable (angemessen), punishment of confinement for life in a penitentiary shall be imposed.'”

The agreed statement also contains a translation of $8 44 and 51 of the German Criminal Code providing for reduction of sentence under circumstances which were deemed applicable to petitioner by the trial court.

3 See Allied High Commission, Law No. 1, Art. 1, December 28, 1949, 15 Fed. Reg. 2086, Appendix, infra, pp. 370–371.

* See United States Military Government Ordinance No. 31, Art. 13, August 18, 1948, 14 Fed. Reg. 127.

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