Omaha daily bee., 1907-08-01
Claim that They Were Cumulative
Denied by Court.
ALLOWANCE FOR GOOD CONDUCT
1t is Also Ruled that Statute and
Army Rules Govern.
SENTENCES EXPIRE OCTOBER
kirkmRn was Convicted of UnbecOm-
ina Conduct and Given Sentences
of Two and One Years for
Separate OHenses.

| TOPEKA, Kan, July a.-Judge Smith
Mcpherson of the United States district
court for the southern district Of Iowa filed
! an opinion here today with the clerk of the
federal court denying an application for
writ OF habeas corpus made by George
] w. Kirkman, ex-captain of the United
States army, now serving three years in
the federal prison at Leavenworth, Kan.
! The decision is important as bearing upon
the matter of time or allowed military
prisoners for good behavior. 1t IL Kirk
mans second rebuff in an effort to secure
! release.
! Captain George w. Kirkman was con-
victed by court-martial at Fort Niobrara,
Neb., on two separate charges Under one
he was sentenced TO Imprisonment for two
years and the other for one year. Both
orders were approved by President Roose-
welt June l5, 1906 The wording of the
J judgments failed to state whether they
should be construed or considered as cumu-
lative or consecutively and at the expira-
tion of the two years term, less credits for
good conduct, Kirkman applied 10 the
federal court to be discharged on. writ
of habeas corpus, his contention being that
the two judgments we're cumulative. The
| court, Judge Pollock presiding, discharged
| the writ and remsnded the prisoner, hold
! ing that such judgments were consecutive
and in effect sentence OF imprisonment
! for three years. The court conceded that
judgments of the civil courts would be
construed cumulative, but that judR-
ments of military courts should be con-
strued consecutive. Kirkman appealed
| to the circuit court of appeals and his ap-
| peal is now under advisement.
| On July 26 Kirkman appeared before
Judge Mcpherson, sitting al Leavenworth,
'and again petitioned for a writ OF Sa6sas
corpus, holding his time was then up,
considering time OF for good behavior.
while Warden McClaughey contended that
october 8, 1907, will be the time for re-
lease Judge Mcpherson in his opinion to-
/ day discharged Kirkman's writ and re-
manded the prisoner to the warden.
Opinion OF Court.
Judge Mcpherson In his decision says In
part:
The warden comedies that the pfisoner is
entitled & to the t fEIlest s iesa. sd e5sdits r. ana
case should be the question and the only
question for this court on this hearing.
Paragraph $40 of the United states army
regulations provides that general prisoners
will be allowed abatements when serving
OF n esGS
period of twenty days during the whole OF
which their conduct has been good to be
where the prisoner is confined. These reg
| ulations were promulgated by the Becre-
dent sf in in isSt @ I The I petitioner contends that
this as to him. is in the nature OF and
with like effect as pardon.
The following propositions are conceded
| by all The pardoning power is under the
! constitution solely vested In the president;
5 cSTs 6y S.so10y Seeps en
/ as well as after conviction. But after the
crime has been committed he may as an
condition, relieve the offender and give
| him a legal statue as though he had never
violated the laws. And 1t Is conceded that
of persons without naming them, as illu-
strated by the case OF r parte Garland 4
| cases following the civil war by amesty
| proclamations, and as have been done By
! like proclamations with reference to polyg-
| amists.
Regulations Not Pardons.
But it cannot be said that the army reg
uations allowing abatements of time for
| good conduct are in the nature of pardons.
! The president and he alone can pardon and
the fact that he is materially aided by the
| Department OF Justice. including a pardon
ing clerk, does not In any way limit the
( stitution The president can and does re-
NIT TO others the duties of investigation
snG sneh s persons cannot cannot ISSUE the f pardon ~
Under the army regulations, as has been
seen, the abatement OF the sentence is by
/ the commander or warden of the prison.
! and with which the president has nothing
/ to do. Therefore 1t was and Is entirely
competent for congress by enactment to
! provide what abatement the prisoners may
! have for good conduct and such legisla-
tion is not infringing upon the powers OF
! his prerogatives as commander-in-ehief of
the armies
Attachments shall be allowed And as
, understand the record, the warden Is OBJ
Z serving the same and will most cheerfuliy
! give the credits as that statute provides.
| And as that statute was In force when
/ the Judgments were pronounced and as
! the computation under that statute will
make the sentences expire by Limitation
( October next the writ must be discharged
and the prisoner remanded.