The Houston daily post. [volume] (Houston, Tex.) 1886-1903, 1899-12-19


have the eject Of abrogatlne all State laws
as to the offcnses committed by oifters
and soldiers In the State and mako their
amenability to State laws and State courts
absolutely dependent upon the discretion
or will OF n military commander. howeytf
high or low his rank may be.
A question similar 10 the ole under toi,-
sideratlon was submitted 20 tho at'>tnsys
general OF the Uaitcd States by Hon. JET
ierson Davis while secretary OF war. A
surgeon In the United States army, While
stationed at Fort Graham, Tcxls, shot and
killed an officer In the army, major.
This surgeon was indicted In he State
court, and the question was submitted "
the secretary of war. as to .he slrht or
power OF the State court to try she case,
and as TO the duty OF the commanding Of
ficer to surrender the accused 10 the State
authorities. The opinion, an abe and en-
haustive one, was rendered by Attorney
General Cushing, who, AFTER IN elaborate
discussion. concluded his opinion as COL
lows:
From the general doctrines of law here
stated. sundry cerollaries plainly flow, an
plicable to the present inquiry.
81. 1t is the duty of General Smith tthc
commanding offcor) TO aid the political
authority OF the State of Texas in bring
ing Surgeon to trial for murder
as citizen on the pending Indictment,
and to that end to cooperate with any
civil magistrates, or. II need be. to act
in spite OF any particular magistrate in
order to prevent his escape.
"2. IT. In the meantime, Surgeon ------
escapes from civil custody. or is released
on bail II is the right and duty of Gen
eral Smith TO hold on mesne process. or
for trial by the civil authority OF Texas.
80. So long as ---- ------- Is not in the
actual custody of the civil authorities, he
is amenable to the military authorities
and may he tried by them, either for the
crime of mutiny or for that OF desertion,
or for that breach of arrest, neither of
which Is triable by the civil magistrate.
"A. Although not necessary In the actual
case, yet in defense to the spirit of our
Institutions and to the civil authority, II
may be expedient for the military author
tiles to suspend the trial of the military
relations of the act of killing Brevot Ma
jor 49,, until the civil relations of that
act shall have been tried by the civil mag
strate.
20 As 1t is the duty of General Smith.
and will, of course, be his pleasure to do
everything in his power to assist the po-
litcal authorities In the arrest, custody,
trial and punishment of ----, civiliter,
there can be no collusion or conflict OF
|. jurisdiction between the military and civil
authorities, etc, etc" SEE volume No. s,
lip. 427, Opinions Attorney General United
/ states
4 That opinion has always been accepted
/ by the Federal authorities and Is cited
with approval by the supreme court of the
| United States in tie case OF Coleman VS.
Tennessee ~ u. s., $40.
In conclusion hey to saw that | am o
the opinion. that regardless OF the question
Of guilt OF innocence Of the officers and
soldiers for participation In the recent
unfortunate events at Fort Ringgold, that
/ should they be indicted by the State
authorities, that II is the plain duty al
the officer commanding. TO surrender thu
accused persons upon proper application
to the civil authorities of Texas fo~ 'ria
in the State court whore their guilt oil
innocence will be determined in accordance
with the law and the facts. I am, Your
very truly, +. H Ward.
Office Assistant Attorney General