Evening star., 1953-06-26
Court Orders Return
OF Veteran. Held in
Korea in Murder Case
By Howard L. Dutkin

BY Howard L. Dutkin
Government attorneys today
will appeal from an order issued
by Judge Alexander Holtzoff di-
recting the Air Force to return
to this country q former airman
being held in Korea on q mur-
der charge.
After issuing the writ Of ha-
beas corpus for the return of
Robert w. 10th. 21-year-old
former sergeant in the Air
Force, Judge Holtzoh late yes
terday stayed his own order.
pending appeal.
A petition for the stay was
presented by Assistant United
States Attorney Edward o. Fen
nell and 1t. Col. Chester w. VIII
son, of the Air Force legal de-
partment.
They argued that substantial
questions Of law were at stake,
and Judge Holtzof agreed.
The judge issued a writ after
holding that military policemen
had no authority to arrest 10th,
who was a civilian at the time.
The Korean war veteran had
been honorably discharged last
December s. Last month, while
at his job in a Pittsburgh steel
plant, he was arrested by military
police and flown back to Korea
to stand court martial, charged
with the murder Of q Korean
civilian. ...
The Air Force defended its
action by citing a section of the
Uniform, Code of Military JUS
tice adopted in 1851.
The section specifies that any
person guilty of an offense while
in the military service for which
he might have received a SEN
tence Of five years or more may
be tried by court martial if no
civilian court in the United
States or its territories has juris-
diction. The section applies even
after discharge from the service.
Judge Holtzof declared that
he did not feel it appropriate
at this time to rule on the con-
stitutionality of the section. But
he did say: There is no provi-
sion of law granting to the
military police power to arrest
a civilian. even for the purpose
of implementing the military
CODE"
Omission in Code.
He asserted that Congress, in
passing the military code, had
failed to provide methods by
which a civilian legally could be
brought to the site of court mar
tial.
There is an omission in the
code of military justice in this
matter" he declared. There is
no machinery whereby a civilian
can be arrested and removed to
far-of place for court martial.
1T is wrong for the court to
supply what Congress has omit
ted. One of the foundation stones
of the Republic is that the civil
ian power shall be at all times
superior to military power &.
1t is the duty of the courts to
protect the rights of citizens -"
The judge grew indignant
when Attorneys Anthony Nc
Grath of Pittsburgh and William
A. Kehoe of Washington, repre-
senting 10th, told him Toth's
family was not given an oppor-
tunity to see him before he was
taken away.
II don't think civilian police
would do that" the jurist COM
mented. "They are more hui
mane."
Ordered Shot.
The former airman is accused
of having participated, while in
the service, in the murder Of a
Korean civilian, discovered by a
guard in a restricted area.
According to the Air Force,
the civilian was ordered shot by
a lieutenant on duty. 10th was
sergeant of the guard at the
time. The Korean was killed and
10th was implicated along with
Airman Thomas L. Kinder and
1t. George C. Schneider.
The latter two men, still in
service, are facing court martial
in Korea.
If the writ of habeas corpus is,
not upset, 10th will be returned
for further court proceedings.
The writ directed that he be
brought to Pittsburgh or to An
drews Air Force Base, where he
had been kept for two days en-
route to Korea.