Deseret evening news. [volume] (Great Salt Lake City [Utah]) 1867-1920, 1907-07-31
In Capt. Kirkham's Case Judge
Mcpherson Holds Them Con-
secutive Not Cumulative.
THE PRISONER Is REMANDED.
He Had Made Application for a
Writ of Habeas Corpus Which
The Court Denied.
Decision Regarded as Important in Its
Bearing on Time Allowance for
Prisoners Tor Good Behavior.

Topeka, Kans.. July 3l.---Judge Smith
Mcpherson, OF the q. S eis,rlet court
for the Southern district OF Iowa filed
an opinion here today with the clerk
of the federal court, denying an appli-
cation for a writ of habeas corpus made
by George w. Kirkman ex-captain OF
the U. S. army. now serving three years
in the federal prison at Leavenworth
Kansas. The decision liz important as
bearing, upon the matter of time off al
lowed military prisoners for good be-
havior.'
Capt. Kirkman was first tried In
March, 1905, by court martial at Fort
Niobrara, Neb., and was convicted of
conduct unbecoming an officer and a
gentleman. He was sentenced 10 dis
missal from the army and to serve a
sentence of two years In the federal
penitentiary. In pAril, 1905. he was
uried again on similar charge, .alnl
guilty, sentenced to dismissal from the
army and to serve an additional year
in the penitentiary.
The second charge against kirkman
recited his career for the two years pre-
vious and bore particularly upon the al
legged relations which ended in the sui
eide, last winter, in Omaha, of Mrs.
Chandler, wife of Lieut.. Chandler of
Capt. Kirkman's own company the
Twenty-fifth infantry Breach of ar
rest" charges were filed because of
kirkman's leaving the post while UNI
der arrest and going to Valentine. Neb.,
where, ii was charged, he met Mrs.
Chardler. who killed herself two days
later.
Both orders Were approved by Presi-
liant Al Va
wording of the judgments failed 10
| state whether they should be construed
or considered as cumulative or consec-
utive, and at the expiration of the two
| years term, less credits for good con-
duct, I<irkman applied TO the federal
court 10 be discharged on writs Of
'habeas corpus, his contention being
| that the two judgments We're cumula-
| tive. The court, Judge Pollock pre-
| siding, discharged the writ and re-
manded the prisoner, holding that, such
| judgments were consecutive and In eff
feet sentence of imprisonment for
years. The court conceded that 1udg
ments of the civil courts would be
construed as cumulative. but that 1udg-
ments of military courts should be
construed as consecutive. Kirkman
appealed to the circuit court of appeals,
and his appeal Is now under advise
ment-
'Ch "uiy ~, AL "pPsotS1 cSfS'S
Judge Mcpherson, sitting at Leaven-
worth. and again petitioned for writ
of habeas corpus. holding his time was
up, considering the time off for good
behavior. Warden McClaughry con-
tended that Oct. 8, 1907, will be the time
for release. Judge Mcpherson, in his
opinion today, discharged Kirkman's
writ and remanded the prisoner to the
warden, saying in part:
1.-THE statute OF June II. 1902 provides
that ATTACHMENTS shall be allowed. And
as l understood the record. the warden
is observing the same, and Will most
cheerfully 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 sem
fences expire by limitation Oct. next.
the writ must be discharged and the
prisoner remanded."