The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1907-07-31
nc UAV UU FnGL
Captain Kirkman Loses HIS
Second Fight.
Former Captain Must Serve HIS
Term in Prison.
THE DECISION TODAY.
Judge Mcpherson Denies Writ
of Habeas Corpus.
Will Have to Wait Until
October 5.
THE DECISION TODAY.

ion here today with the clerk Of the
federal court, denying an application 1ol
a writ of habeas corpus made by GEO.
w. Kirkman, ex-captain of the United
States army, now serving three years IN
the federal prison at Leavenworth, Kar.
The decision is important as bearing
upon the matter of time off allowed mil
itary prisoners for good behavior 1t Is
Kirkrnan's second rebuff III an effort 10
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 imprison-
ment for two years and the other for
one year. Both orders were approved by
President Roosevelt June 10, 1903 The
wording OF the judgments failed to
state whether they should be construed
considered as cumulative or consecu-
tive and at the expiration of the two
years term, less credits for good con-
duct, Kirkman applied to the federal
court to be discharged on a writ of
habeas corpus his contention being that
the two judgments were cumulative.
The court, Judge Pollock presiding, dis
charged the writ and remanded the pris-
oner. holding that such judgments were
consecutive and in effect a sentence OF
imprisonment for three years. The court
conceded that judgments of the civil
courts would be construed as cumula-
tive, but that judgments of military
courts should be construed as conSecu-
tive Kirkman appealed to the circuit
court of appeals and his appeal is now
under adVisement.
On July 26 Kirkman appeared before
Judge Mcpherson, sitting at Leaven-
worth and again petitioned for writ OF
habeas corpus, holding his time was
then up considering time off for good
behavior while Warden McClaughry
contended that October 5, 1907, will be
~ r.a1n1
son in his opinion today discharged
Kirkman's writ. and remanded the pris-
Oner to the warden. .----. -- --
Judge Mcpherson, in his decision
says in part:
prisoner is entitled to tie fullest legal |
credits, and what full legal credits as
applied to his case should be, is the
question end the only question for
this court on this hearing. Paragraph
e49 of the United States army regula-
lions provides that General prisoners
Will be allowed abatements when
serving sentences of over one year
and not over three years ten days for
each complete period of twenty days
during the whole of which their con-
duct has been good, to be determined
by the commanding officer where the
prisoner is confined. These regula-
tlons we're promulgated by the secre-
tary of war by the direction of the
president in 1904. The petitioner con-
tends that this, to him, is In the
nature of and with like effect as
pardon.
..The following propositions are
conceded by all. The pardoning pow
er is under the constitution solely
vested in the president. Congress
cannot curtail it by statutory enact
ments The president can pardon be
fore as well as after conviction But
after the crime has been committed.
he may as an act of grace and mercy
with Or without condition reheVe tne
offender, and give him legal status
es though he had never violated the
laws And it is conceded that the
president may grant pardonS 10
class of persons without naming
them. as is Illustrated by the case of
ex-Parte Garland, 4, Wallace 3S3, and
as was done in numerous cases FOL
lowing the civil war by amnesty
proclamations, and as have been done
bv like proclamations with reference
10 nolvgamists But it cannot be said
that the army regulations allowing
abatements of time for good conduct
are in the nature of pardons Ihe
president and he alone can pardon,
and the fact that he is materially
aided by the department of justice
including a pardon clerk, does not IN
anv way limit the prerOgatives OF the
president under the constitution The
Iresident can and does remit to others
The duties of investigation and MAX
ing reports as to pardons, but such
persons cannot issue the pardon
Under the amy regulations, as has
been seen. the ebatement of the SEN
tence is by the commander or warden
of the prison and with which the presi-
dent has nothino to do. Therefore 1t
was and is entirely competent for con-
eress by enactment to provide what
attachments the prisoners may have
&or good conduct, and such legislation
= not infringing upon the powers OF
the president to grant pardon, nor uDon
lis prerogarives as coTnmander-fn-chiefl
of the army.
The statute OF June 21 1902, provides
what abatements shall be allowed. And
as I understand 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 SEN
tences expire by limitation October 5
next, the writ must be discharged and
the prisoner remanded."
Captain Kirkman was first tried in |
March, 1905, by court martial in
Fort Niobrara, Neb., and was convict
ed of conduct unbecoming an officer
and gentleman. He was sentenced to
dismissal from the army and to serve
a sentence of two years in the federal |
penitentiary. In April, 1905, he was
tried again on a similar charge. found
guilty. { sentenced to dismissal from
the army and to serve an additional
year in the peniten,iary.
The second charges against Kirk
man recited his career for the two
years previous and bore particularly
upon the alleged relationship ending
in the suicide, last winter, in Omaha
OF Mrs. Chandler, wife of Lieutenant