The sun., 1902-02-11
VOLUNTEER WINS ARMY Case.
HIS TRIAL ny REGULARS DE-
CLARED ILLEGAL.
Circuit Court Decides Against the Gov.
crnment and Many Prisoners May 60
Free Secretary OF war Root Consid-
ertng Adyisability OF an Appeal.


ST. LOUIS. Mo, Feb. io.-An opinion was
handed down in the United States Circuit
Court Of Appeals to-day by Judge Walter
II. Sanborn declaring that a Volunteer
soldier cannot be oourt-martialled or dis
ciplined by Regular army officers. The
decision was concurred in by Judges
Caldwell and Thayer. II the decision
stands, it will have the result OF relea sing
hundreds OF Volunteer soldiers who have
been sentenced by Regular army court
martials.
The case was that OF Peter c. Deming,
who was a Captain in the Subsistence De-
partment OF the Volunteer army. On
March 20. 1900. Capt. Deming was tried
on charges by a court-martial called by
Major-Gen. Shafter Of the volunteer army,
who was Brigad General Of the Regular
army By his order a general court martial
composed entirely Of Regular army officers
tried Capt. Deming and sentenced him to
dismissal from the service Of the United
States. and to confinement in the peniten-
tary for three years This sentence was
approved by the Secretary Of War and con-
firmed by the President Of the United States.
In his decision Judge Sanborn says:
A court-martial IL a court Of inferior
and limited jurisdiction. No officer is au-
thorized, but every officer is forbidden TO
constitute Of officers Of the Regular army
court-martial to try a Volunteer, and the
Judgment of such court-martia against
Volunteer Is without jurisdiction and void
WASHINGTON, Feb. lO.-War Department
officers are interested in the report from
ST. Louis that Judge Walter ii. Sanborn
of the United States Circuit Court OF APP
peals has delivered an opinion against the
Government in the case OF Peter G. DeIning,
now IA prisoner at the Fort Leavenworth
prison. The effect Of the decision Will
undoubtedly be farreaching and may re-
suit in compelling the Government TO
release hundreds OF military prisoners,
tried for effences committed during the
war with Spain.
Deming was a Captain Of Volunteers
and attached to the Subsistence Depart
ment. While on duty in san Francisco he
became involved i'm a financial difficulty
which resulted in his court-martial, convi-
ton and sentence on charge OF having
used funds belonging TO the Government.
One OF the regulations OF the army pro-
vides that a Volunteer officer shall not be
tried by a court composed OF Regular army
officers. This seems TO have been over
looked at the time, as il was In great many
cases preceding HIS and was frst called 10
Deming's attention at the Leavenworth
prison by Capt. 0berIin NJ. Carter, who is
confined there. His at torneys were informed
of this const truct ion Of the law and attempted
10 secure his release upon writ OF habeas
corpus This was denied by the lower
court but an appeal was taken TO the United
States Circuit Court of Appeals in Missouri
Owing TO the sweeping effect the de-
cision will have, Secretary Root proposes
to consider the advisabilty Of carrying
the Case IA the United States Supreme
Court. The point raised in the Deming
case has since been raised in the case Of
Capt James &. Read, who was convicted
in the Philippines some time ago for oOm-
plicity In the commis-ary frauds in Manila.
Lieut. Boyer, who was also tried at the
same time, will be affected in like manner.
Besides these officers, there are great
many enlisted men. tried during the Spanish
war by courts composed Of officers Of the
Regular army, who will endeavor to secure
their release on the ground OF Illegal con-
viction, owing to the presence OF Regular
officers on the court.