Johnson v. Sayre
Petition for a writ of habeas corpus. The petitioner was discharged, and respondent appeals. Reversed.

This was an appeal from an order, upon a writ of habeas corpus, discharging David B. Sayre, a paymaster's clerk in the navy, assigned to duty on the United States receiving ship Franklin, from the custody of Capt. Mortimer L. Johnson, the commander of that ship, under a sentence of a naval court-martial. The case appeared by the record to be as follows:

On July 6, 1893, the secretary of the navy signed, and sent to Sayre, an appointment, in these terms: 'Upon the nomination of Paymaster James E. Cann, U.S. N., you are hereby appointed a paymaster's clerk in the United States navy, for duty on board of the U.S. R. S. Franklin. Inclosed is a blank form of acceptance for your signature, also a blank oath of office, which you will duly execute, and return, with your letter of acceptance, to the department; having done which, you will proceed to the navy yard, Norfolk, Va., and report to the commandant, on the 15th instant, for duty.'

On July 10, 1893, Sayre took the oath of office, and returned it to the secretary of the navy, with an acceptance in these terms: 'I hereby accept the appointment of paymaster's clerk, dated July 6, 1893, conferred on me, and do hereby oblige and subject myself, during my service as paymaster's clerk, to comply with, and be obedient to, such laws, regulations, and discipline of the navy as are now in force, or that may be enacted by congress, or established by other competent authority, and herewith inclose oath of office, duly executed.'

Sayre accordingly entered upon the performance of his duties as paymaster's clerk, under Paymaster Cann, on board the Franklin, which was the receii ng ship at the navy yard in Norfolk, Va. Cann, besides being paymaster of the Franklin, was paymaster at Port Royal, S.C.., and of the monitors at Richmond, Va., and was therefore obliged to be away from the Franklin several days in each month.

On October 10, 1894, Sayre was put under arrest by Capt. Mortimer L. Johnson, commanding the Franklin, to await the investigation of a charge of embezzlement, and was thereafter held in custody. On October 13th the secretary of the navy ordered a court of inquiry to convene on October 16th, at the navy yard in Norfolk, for the purpose of inquiring into the method in which the pay department of the Franklin had been conducted during the time covered by the service of Paymaster Cann on board of her, and directed that Sayre be held in custody, but be permitted to attend the court of inquiry, and to consult with counsel, and inspect the ship's papers. He was accordingly brought before the court of inquiry, from day to day, until October 19th. The court of inquiry recommended that he be tried by court-martial on the charge of embezzlement, and he was informed of this by a letter to him from the secretary of the navy of October 25th.

On October 25th the secretary of the navy also ordered a general court-martial to convene at the navy yard in Norfolk on October 30th, for the trial of Sayre, and of such other persons as might be legally brought before it.

The charge against Sayre was of 'embezzlement, in violation of article 14 of the articles for the government of the navy,' with a specification that 'David B. Sayre, a pay clerk in the United States navy, attached to and serving as such on board the United States receiving ship Franklin, at the navy yard, Norfolk, Virginia, having, on various dates between' July 15, 1893, and October 10, 1894, 'been entrusted by Paymaster, James E. Cann, United States navy, the paymaster of said vessel, with sums of money belonging to the United States, in various amounts, furnished and intended for the naval service thereof, for disbursement for the purposes of said service during the temporary absence of said Paymaster Cann from the vessel, and having' on October 1, 1894, 'receipted to the said Paymaster Cann for money so intrusted to his care as aforesaid,' in the sum of $2,701.44, did, between July 15, 1893, and October 10, 1894, 'knowingly and willfully misappropriate, and apply to his own use and benefit, from the money so intrusted to him at various times as aforesaid,' the sum of $1,971.11, 'in violation of article 14 of the articles for the government of the navy.'

On October 26th, a copy of the charge and specification was delivered to Sayre. The court-martial met October 30th, and sat from day to day until November 2d. At its first meeting, Sayre was brought before it, and acknowledged that he had received a copy of the charge and specification. After they had been read, his counsel objected to the jurisdiction of the court upon the ground that Sayre, being a paymaster's clerk, was a civilian, and not subject to trial by court-martial, and also demurred upon the ground that a paymaster's clerk could not be guilty of embezzlement of funds of the United States, because the paymaster only was vested with the management and control of those funds, and had no power to delegate his authority to a clerk. The court-martial decided that it had jurisdiction, and overruled the demurrer. Sayre then pleaded not guilty.

The facts that the accused was originally put under arrest on October 10th, and that the copy of the charge and specification was first delivered to him on October 26th, were not brought to the notice of the court-martial until they appeared upon the examination of Capt. Johnson, the last witness called for the United States. Sayre's counsel thereupon moved that all the evidence introduced on the part of the United States be excluded, because the copy had not been served upon him until 16 days after his arrest, and in support of this motion relied upon article 43 of the articles for the government of the navy,  and article 1785 of the United States navy regulations. 

On November 2d the court-martial, after arguments of the defendant's counsel and of the judge advocate upon this motion, and upon the whole case, overruled the motion, and found the specification proved, and the accused guilty of the charge, and sentenced him 'to be confined, in such a place as the honorable secretary of the navy may designate, for the period of two years'; to lose his pay during his confinement, to the amount of $2,210; and then to be dishonorably dismissed from the naval service of the United States.

On November 17th the secretary of the navy approved the proceedings, finding, and sentence of the court-martial, and ordered the sentence to be duly executed, and designated the prison at the navy yard, in Boston, Mass., as the place for the execution of so much of the sentence as related to confinement, and directed him to be transferred, under § suitable guard, to that prison, to be there confined in accordance with the terms of his sentence.

On November 21st, upon the petition of Sayre, the circuit court of the United States for the Eastern district of Virginia ordered a writ of habeas corpus to issue to Capt. Johnson. The return to the writ stated that Capt. Johnson held Sayre under the order of the secretary of the navy of November 17th. Upon a hearing, the court, held by the district judge, considered, as stated in his opinion on file, and sent up with the record, entitled 'Finding of the Court,' that Sayre was unlawfully restrained of his liberty, because detained under a sentence to an infamous punishment, not in time of war or of public danger, without indictment or trial by jury, in violation of the fifth article of amendment of the constitution of the United States, 'but without prejudice in any other respect to the sentence of the court-martial,' and therefore ordered him to be discharged from custody. Capt. Johnson appealed to this court.

Sol. Gen. Conrad and Littleton W. T. Waller, by leave, for appellant.

John W. Happer and Alexander E. Warner, for appellee.

Mr. Justice GRAY, after stating the case, delivered the opinion of the court. 

Notes

(2) When, therefore, such competent officer shall decide to have a party tried by court martial, he will cause such charges and specifications against him to be prepared as he may consider proper, and will transmit a true copy of them, with an order for the arrest or confinment of the accused, to the proper officer, who will deliver such order to the accused, and will carry it into effect by delivering to him the copy of the charges and specifications, and, if an officer, by receiving his sword. Navy regulations of 1893 (article 1785, p. 462).
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