The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1907-02-19
SHATTEREDINBI BITS
Judge Pollock Deals Military
PrecedentS a Blow.
Intimates That He Will Order
Kirkman's Release.
HELD WITHOUT LAW.
Only Excuse Offered Is That 1t
lis Custom.
Government Officials Given Time
to Look Up Law.

A precedent which has been estab-
lished in the procedure of military law
in the United States for the past 80
years and never been questioned is in
imminent danger of being shattered to
little bits by Judge Pollock of the Uni
ted States district court. 1t all rises
out of the applica ton of Captain George
B. Kirkman, formerly of the United
States army but now confined in the
federal penitentiary at FIT. Leaven-
worth for habeas corpus.
Kirkman was sentenced to two years
Imprisonment under one court martial
proceeding and on another court mar
tial hearing at an interval Of several
months received another sentence of
one year. The findings of both court
martials were sent to the president for
review and approval and on the 18th of
June, 1905, placed his approval, several
ly on each of the sentences and find-
ings of the two court martials. Kirk
States penitentiary, two days later, on
the 18th of June, and commenced serV-
ing sentence. His two years sentence
expired on January q of this year, de-
Quoting the time off granted for good
behavior.
Following this Kirkman filed an ap-
plication for a writ of habeas corpus
claiming inasmuch as the president had
approved the two varying sentences,
one year imprisonment, and two years
imprisonment, on the same day for
identical charges and findings the two
sentences were concurrent and not
cumulative.
He therefore stated that he had fin
ished with the conclusion of the two
year sentence all that the law intend
ed he should serve. The military auth
critics neld differently, however, and
said that Kirkman had one year to
serve yet.
T,,ar- ri1ca. 1879 IN r,,I;p.r baodo5
down from the judge advocate generals
department on a case similar in it's cir
cumstances to the above it has been
held that sentences of this nature were
cumulative and not concurrent. The
precedent established then by this
ruling has been maintained unvarying-
ly ever since by official practice before
military courts. 1t never had a federal
statute existing to authorize such an
Interpretation. Custom had moulded 1t
into a semistatute. When this practice
was cited in former hearings in the fed
eral court it has been accepted without
hesitancy- 1t remained for Judge Pol
| lock yesterday to place the question
mark and probe the precedent.
Simply because it has been practiced
| for years does not signify that it is
i good law" said Judge Pollock. Have
| you statute to show in support of your
| claim?''
Judge J. S. West. assistant district
attorney, and Captain W. C. Doane OF
Omaha, acting judge advocate, could
not answer aff1rmatively.
"It would be interfering with re-
cognized practice in military law to
declare the sentence otherwise than
| cumulative said Captain Doane
| Captain kirkman was an army Of
| fcer and was subject to the rules and
! regulations of the army. He was
| brought under the military rules and
| regulations when he accepted the ad-
| ministered oath. He was amenable
therefore to the military law The Of
! Tense, the charge, the court the pun
| ishment is entirely military. He was
| tried in violation of the articles OF
war conduct unbecoming an officer
and a gentleman When he entered
| the army he subjected himself to its
rules and regulations. 1t was a part
| of the practice of the army to consid-
| err this sentence cumulative and Cap
tain Kirkman rendered himself amen
able to this construction"
/ Judge Pollock, however, refused tc
accept this Interpretation. He held