Evening journal., 1913-02-25

more Par. 1872. Regulations L. S. NJ.
A.. which reads on pain of being dis
missed the service appears to be
different from the mandatory shall
be dismissed the service, which gov
erns in the aggravated cases cited Ia
Par 133'
The brief also quotes the conclu-
sion of Secretary OF War Stimson
that the Court in sentencing these
cadets was probably influenced by the
mistaken construction that under ar.
ticle 132 of the Regulations of the
Military Academy a penalty of dis
missal was mandatory ipstead of dis
cretionary with the Court"
Would Automatically Relnstate.
Many other authorities are quoted
in support Of the petitioners conten-
ton on this point, and then the brief
proceeds: From the above authori-
ties it is very evident that a man
datory sentence of dismissal was
within neither the letter nor the
spirit Of the law and constituted a
fatal defect in the proceedings
Various citations are made TO show
that the Articles Of War must govern
the proceedings of courts-martial.
1T is contended." says the brief,
that the court which tried the petit
tioners was without jurisdiction, and
that in the event OF its having iuris-
diction there was a fatal defect in the
proceedings, thereby in either case
invalidating the proceedings from the
standpoint Of military law. And for
either Of these reasons 1t is submitted
the reviewing commander Gin the case
at hand, the President of the United
Statesl has the power to ISSUE even
now, supplemental orders declaring
the proceedings Of said court a null
lity and the original orders inopera-
tive and Withdrawn
And as to the status of the accused
after II is found that there was an
illegal dismissal authority is quoted
for this.
I'm case Of a soldier who was dis
honorably discharged pursuant TO an
illegal sentence. held that as the SEN
tence was null and void the dishonor-
able discharge was OF no effect and
the soldier could be returned TO duty
without trinl'
Justice. Not Mercy.
Following is the conclusion Of the
brief.
Therefore. Il is earnestly besoughl
that the reviewing commander, the
President OF the United States, will
avail himself Cat the earliest possible
! convenience of the power vested in
him by the above authorities and pre-
cedents and will issue supplemental
orders in the cases of Cadets Free
land, Sasse. Smkins and Christian
Cthe petitionersl.
Not because from matters out.
side of this brief and not herein
touched upon the petitioners appear
to be the victims Of a direct persecu
i tion:
Not because the sentence awarded
them for a trivial offense was 'crue
and unusual (see records of trials o
cadets by general courts-martial a
the Military Academy for ten years
/ l1S99-19O9. inclusiye);
mot because most seriOu
breach OF discipline, right at tn
Academy Ian offense calling for un
equivocal dismissal was. in anothe
instance, passed over without court
martial merely with fatherly tall
from the superintendent, Genera
> Barry, and the exactlon OF a prom
Use;
Not because Of the fact that tn
sole evidence against the petitioner
was obtained because OF their higl
sense of honor-three OF them (Free
land Sasse, and Simkinsl being court
martialed solely on the strength o
their reply to an discriminating ques
tion not material to the inquiry. thei
in progress. a question they wer
commanded TO answer after they hai
claimed their privilege Cthis in direc
contravention of the Fifth Amend
ment to the Federal Constitution
and the fourth petitioner (Christian
who was In company with other tha
the above named cadets. having bee
questioned as to contraband reptile
/ truthfully when there was opportun
, ity to destroy evidence Of contraban
had such instinct prompted him:
= mot because the petitioners (afte
, being consulted as 10 their choice
were refused the counsel they aske
t to have defend them their frs
, choice being a Opt. Samuel Ansel
, from Governors Island. and thei
t next choice being any one Of three o
: four instructors in the Law Depart
} ment at the Academy whom they nam
/ ed)-and we're given an unsutabl
r and incapable counsel contrary I