The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1907-03-13
Captain kirkmam Loses His
Habeas Corpus Suit.
Must Serve Both His. Terms in
Federal Prison.
INTERESTINCAS
Was Convicted on Two Different
Charges.
Charged With breaking Up
Home of Fellow officer.

4
| Judge j. C. Pollock. of the United
States circuit court handed down a de-
cision this morning in the case of eK-
Captain George W.. Kirkman against
Warden r. w. McCIaughry of the fed
eral penitentiary sustaining the con-
tention of Warden McClaughry that
! the sentences imposed on Kirkn1an
are cumulative and not concurrent and
denying the writ of habeas corpus. He
| is supported in his decision by an opin-
ion handed down by w. H. Taft. score
tary of war. who held in similar case
that sentences of a court martial are
cumulative and not concurrent as in
civil cases
The defendant in the case was a
captain in the Twenty-ifth infantry
when the offenses for which he was
tried and convicted were committed.
The first trial was held at Fort
Niobrara, Nebraska. and sentence was
passed on him on the 23rd of May.
1905, and approved by President
Roosevelt the 18th of the month fol-
lowing. The second offence was
committed in the meantime He was
tried for the violation of the 61st and
62nd articles of war, which like a
charge of vagrancy in police court
may cover a multitude of transeres-
Sions. The articles m elptioned specify
that he was guilty of conduct unbe-
coming an officer and conduct pre-
Judicial to the good order and military
discipline of the army. The offense was
breaking UP a brother officers family
He was sentenced to be confined in
the federal penitentiary at hard labor
Tor a term of two years on the first
charge by the court martial and it was
while he was awaiting trial for this
offense- that the other offenses were
alleged to have been committed for
which he was convicted at a second
trial and sentenced to one year in the
q q n II e,,-x1 Ie.I,
The first sentence expired Janua ry
~ of this year deducting the time al
lowed by good behavior and it was the
contention of the plaintiff that the
sentences were concurrent and that as
such they commenced running when
his first confinement began and that
he should have been released at the
expiration of this Sentence.
When the action Was broasht Judge
Pollock was inclined to believe that
as President Roosevelt approved both
sentences on the same day that they
should be considered concurrent.
the United States district attorney.
Judge Pollock based his opinion on
the rule which governs civil procedure
and where it is held that sentences
under similar conditions are concur
rent unless otherwise specified.
The case was set for trial on the |
9TH of the present month and the ex-
captain was present to assist in the |
Il lctl VI MS ease lIOuSn lie acted Only
in an advisory capacity. In an appeal
which he made to Judge Pollock by |
letter he stated that he had been act !
ing in the capacity of military in !
structor in the army prior to the time /
of his dismissal and that he feared |
that unless he was permitted to appear |
in his own behalf that his attorneys |
would not understand the case and |
make the necessary distinctions be- |
tween civil and military procedure.
In rendering his decision in the case,
Judge Pollock calls attention to the |
fact that when man enlists as SOL /
dier that he valves many of his rights, |
one of them being his amenability to |
The civil courts for the transgression
Of laws 1t is admitted that had the !
case been within the jurisdiction of
the civil courts that the prisoner would
have been entitled to his liberty on the
22d of January. when his two year
expired.
The decision handed down this
morning follows the precedent set by
he judge advocate generals depart
nent which took this view of the mat
er in 1873. though the question raised
oy ex-Captain Kirkman is a new one
md has never been passed upon as the
inding was accepted without ques-
ion prior to this time. The case is
,ne of the most notable in recent years
md the decision handed down this
morning is of the utmost importance
o those who are subServient to the
laws of the country. Ex-
Captain Kirkman will have about {
months more to serve before his term
# Imprisonment expires.