New-York tribune., 1900-01-25
MUST SERVE HIS SENTENCE.
THE WRIT OF HABEAs CORPUS IN THE CAR
TER CASE DIsMIssED-AN APPEAL
TO BE TAKEN.

Ex-Cautain Oberlin NJ. Carter, U. s. A. "HO
convicted by a court martial OF frauos - So-,and
tion with the Savannah River ana |s |uiii o
Sound improvements and Is now pll9, ,n,-
Governors Island and sentenced TO sLA Se -.
prisonment in Fort Leavenworth' KAN M ,oTo,os
ont hts sentence unless the United States supreme
Court rules otherwise. -, ,,as
The limited States Circuit Court OF Appears Se9
teraav handed down decision in the haoeas 80
nus case instituted by Carter. affirming the decSio
nF 1udga Tacombe in the Circuit Court disrnlssins
the writ with COSTS The decision was slsheu DS
Judges Wallace and Shipman. carter was aiS0 %
sessed a fine, which he paid . -
The opinion bases the decision primarily -. UH
ground that il the court martial had jurlsuI0'ioii
which the appellant does not wholly deny lts pro,
ceedings are not subject to review by the Feoer@i
courts On this point the court says In part
It Is not the office of writ of habeas corpus 10
perform the functions OF "T9 marital Courts mar
tial tribunals created by Con9sae 9Sps+itution
and have e'e as PpIenary jurisdiction of offences com
mted to them by the law military tnits as stafe a3 m n the
exercise of their statutory powers over O'"ei "
fences.
The contention of the appellant that the couI'
martial exceeded it's Jurisdiction In imposing pun
ishment of both fine and Imprisonment instead OF
fine or Imprisonment is dismissed by the court On
the ground that more than one oHence haHleu
In the Goth Article of War committed 1t was
legal to impose more than one punishment Inc
court says:
We entertain no doubt that the concluding clause
(of the Goth Artice) is to be read fcas
applies each of the ten enumerated th
and that person convicted of two or more OF the t
ten offences Is by it's terms punishable Tor each ~
fine, by imprisonment, or by such other puIlESa-
ment as the court martial may adjudge. Any other
construction would attribute Congress the lnteh-
ton ignore distinction between the degrees
guilty of one offence to the measure of pun
ishment guilty of several or of all of the ten
offences.
The opinion goes TO say that the four punish
ments of fine. Imprisonment publication and dis
missal which imposed upon Carter were all
lawfully imposed, that the Imprisonment was there
fore lawful, and that there ground. there
fore for the granting of a writ of habeas corpus.
The opinion was written by Judge Wallace and
concurred in by Judge Shipman Judge La
combe, the third member of the court, who dis
posed of the habeas corpus proceedings in the first
instance, was, of course. not eligible to hear the
appeal
L. Latin Kellogg of Kellogg, Rose & Smith,
counsel for the prisoner. told a Tribune reporter
yesterday that he would appeal the case to the
United States Supreme Court at once He said:
There cases decided by the Supreme Court
which. in my opinion, hold that the Federal courts
have jurisdiction to review the decision of courts
martial in cases where the proceedings of the lat
ter are merely erroneous, and void being
without their Jurisdiction, and think that the Su-
the case reviewed In a Federal court 1 conf
dent thaI Garter will be freed ultimately because
MS imprisonment is unlawful | shall probably
institute the appeal by a motion for a writ of GER
tforari from the Supreme Court I shall take action
at once.
No reporters were allowed to see ex-Captain Car
ter yesterday. 1t is believed that his health is
seriously impaired.