New-York tribune., 1920-03-06
Army Must Try
Bergdoll, Rules
Federal Court
Prisoner Was Regularly In
Quoted Into Service, Says
Judge; May Affect Cases
of 10, 900 Draft Evaders
Called s'Morbid Coward''
Lawyer to Ask Supreme
legal Decision; Military
Proceedings On To-day


doll, Philadelphia draft dodger, will
continue to-day. Judge Learned Hand
in the Federal District Court, decided
yesterday in connection with habeas
corpus writ that Bergdoll had been
regularly inducted into the military
service of the Unuited States, and held
that his trial by court-martial was
proper. Counsel for Bergdoll had con-
tended that his trial should take place
before civil court, on the charge of
draft evasion, instead Of the present
charge of desertion.
The decision is expected to create a
precedent for the 10000 other draft
dodgers who refused to answer the
summons Of the government at the out
break of the war. The maximum pen
atty for desertion, according to a re-
cent executive order, is Imprisonment
for eighteen months, while that for
evasion of the draft is one year.
Bergdoll Remains Unmoved
Bergdoll, who was in court with his
mother, under the eyes Of two enlisted
men with side arms, who brought him
from Governors Island, gave no evil
dencc of concern at the decision. He
played with small black mustache
during arguments of his counsel, and
later busted himself in writing notes
and sending them to his lawyers. When
Judge Hand was announcing his de-
cision, he crushed a note in his hand,
and was still holding the wadded paper,
when he was handcuffed to be taken
back to Governors Island At his de-
parture, his mother, who displayed no
emotion, told him that she would be on
hand at the court-martial at 10 o'clock
this morning.
In dismissing the motion for Berg
dolls trial by civil court, Judge Hand
said that the application was more des-
titute of merit than almost any ever
cision on the petition submitted for
the habcas corpus writ, which by
Bergdoll was brought into court, Judge
Hand declared that Bergdoll was
shown by the petition to have regis
tered for the draft and later to have
absented himself from the physical
examination, and to have remained in
hiding for a long period
He held that induction had been
automatically effected by notice sent
to Bergdoll in August, 1918, by the ad-
jutant generals department. in which
Bergdoll was ordered to appear with
in ten days. The fact that Bergdoll
had absconded and did not receive the
notice Judge Hand held to be incon-
sequential.
Morbid Coward, Says Judge
"The only conceivable argument ad-
vanced is that Bergdoll may have been
incapable of ordinary judgment" Judge
Hand declared. From the allegations
it appears, however, that the man was
a morbid coward. He may have some
form Of mental arrangement. but that
does not change the power of the au-
thorites to induct him. In that case
his arrangement should have been
brought before the local board, as it
is a consideration which does not
affect the jurisdiction of the court
martial"
Harry Weinberger, counsel for Berg
doll, requested that his client be
placed in the custody of the United
States Marshal for this district pend
ing his appeal to the United States
Supreme Court but Judge Hand denied
the motion. Weinberger announced
a1terWard tnaC ne would take the case
to the Supreme Court to-day.
Weinberger, in his argument,
claimed that civil trial by jury was
provided for in draft evasion cases,
and that only upon conviction was a
man inducted into military service,
when court martial would have
jurisdiction. He said that efforts Of
the government to induct person
into military service could be defeated
il man failed to register or return
a questonnaire.
Weinberger referred to Mrs. Berg
doll on one occasion. He said that
Lieutenant Colonel c. C. Cresson,
courtmartial judge advocate, assist
ing Federal District Attorney Francis
G. Caffey in opposing Bergdoll's motion,
had refused to let her son stay in the
city while waiting for the hearing yes
terday afternoon after Judge Hand had
put it over from the morning.
"Put the handouts on him and take
him back to Governors Island" Vein
berger quoted Cresson as saying
Wcinberger raised point that the
name of f. D. Berry, adjutant general,
had been made with rubber stamp
on the notice sent to Bergdoll when
the regulations called for its being
made with pen and ink. "Such a con-
tention is too trivial to be noticed"
Judge Hand declared.
n