Homma v. Patterson
Captain George W. Ott, JAGD, of Chicago, Ill., for petitioner.

Mr. J. Howard McGrath, Sol. Gen., of Washington, D.C., for respondent.

On motion for leave to file petition for writs of habeas corpus and prohibition and on petition for a writ of certiorari to the Supreme Court of the Commonwealth of the Philippines. The motion for leave to file petition for writ of habeas corpus and writ of prohibition is denied and the petition for writ of certiorari is also denied on authority of Application of Yamashita, and Yamashita v. Styer, 327 U.S. 1, 66 S.Ct. 340. Mr. Justice MURPHY has filed a dissenting memorandum in which Mr. Justice RUTLEDGE concurs. Mr. Justice RUTLEDGE has filed a dissenting memorandum in which Mr. Justice MURPHY concurs.

Mr. Justice MURPHY, dissenting.

This case, like In re Yamashita, 327 U.S. 1, 66 S.Ct. 340, poses a problem that cannot be lightly brushed aside or given momentary consideration. It involves something more than the guilt of a fallen enemy commander under the law of war or the jurisdiction of a military commission. This nation's very honor, as well as its hopes for the future, is at stake. Either we conduct such a trial as this in the noble spirit and atmosphere of our Constitution or we abandon all pretense to justice, let the ages slip away and descend to the level of revengeful blood purges. Apparently the die has been cast in favor of the latter course. But I, for one, shall have no part in it, not even through silent acquiescence.

Petitioner, a civilian for the past three and a half years, was the victorious commander of the 14th Army of the Imperial Japanese Army in the Philippines from December 12, 1941, to August 5, 1942. It may well be that the evidence of his guilt under the law of war is more direct and clear than in the case of General Yamashita, though this could be determined only by an examination of the evidence such as we have had no opportunity to make. But neither clearer proof of guilt nor the acts of atrocity of the Japanese troops could excuse the undue haste with which the trial was conducted or the promulgation of a directive containing such obviously unconstitutional provisions as those approving the use of coerced confessions or evidence and findings of prior mass trials. To try the petitioner in a setting of reason and calm, to issue and use constitutional directives and to obey the dictates of a fair trial are not impossible tasks. Hasty, revengeful action is not the American way. All those who act by virtue of the authority of the United States are bound to respect the principles of justice codified in our Constitution. Those principles, which were established after so many centuries of struggle, can scarcely be dismissed as narrow artificialities or arbitrary technicalities. They are the very life blood of our civilization.

Today the lives of Yamashita and  omma, leaders of enemy forces vanquished in the field of battle, are taken without regard to due process of law. There will be few to protest. But tomorrow the precedent here established can be turned against others. A procession of judicial lynchings without due process of law may now follow. No one can foresee the end of this failure of objective thinking and of adherence to our high hopes of a new world. The time for effective vigilance and protest, however, is when the abandonment of legal procedure is first attempted. A nation must not perish because, in the natural frenzy of the aftermath of war, it abandoned its central theme of the dignity of the human personality and due process of law.

Mr. Justice RUTLEDGE agrees with these views.

Mr. Justice RUTLEDGE, dissenting. 

Notes
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