United States ex rel. Helmecke v. Rice

HUTCHESON, District Judge.

This is the application of Arthur A. Helmecke for a writ of habeas corpus to secure his release from custody under a judgment of a general court-martial, entered pursuant to a trial, that Arthur A. Helmecke should be dishonorably discharged from the service, should forfeit all pay and allowances due or to become due, and be confined at hard labor at such place as the reviewing authority may direct, for five years. The specification on which the trial was had and under which the custody was held is:

“That Arthur A. Helmecke, alias Arthus A. Helmieke, order No. 806, registrant of the local board of Cameron county, Texas, having been lawfully inducted into the military service of the United States, did, at or near Brownsville, Texas, on or about the 14th day of November, 1917, desert the service of the United States, and did remain absent in desertion until he ivas apprehended at San Benito, Texas, on or about the 10th day of January, 1922.”

To the jurisdiction of the court-martial the relator, through counsel, interposed a special plea on the ground that relator was not in the military service at the time of the alleged desertion, and, not being a person under military authority, would not be and is not subject to trial by court-martial. The court-martial proceeded with the trial, and sentenced Helmecke as above stated, and now, in answer to the application for writ of habeas corpus filed,by the relator, affirm that relator was subject to military law under subdivision (a) of the second article of war:

“All volunteers, from the dates of their muster or acceptance in the military service of the United States, and all other persons lawfully called, drafted or ordered into, or to duty or for training in, the said service from the dates they are required by the terms of the call, draft or order to obey the same.” Comp. St. § 2308a.

They affirm that Supplementary Rules and Regulations No. 1 of August 1, 1917, were in force and effect in November, 1917, when they say Helmecke was inducted, and that under this section Helmecke was in fact inducted into military service. The section referred to provided as follows:

“Section 3. Adjutant General to order persons certified on form 146-A into military service upon receipt of form 146-A by» indorsement from the district board. The Adjutant General will mail to each person whose name appears thereon a notice directed to the address as shown thereon, informing him that he has been selected for military service, and ordering him to report for military service, in person or by mail or telegraph, to the Adjutant General of the state at a specified date not later than five days from the date of mailing such notice. From the date so specified, each man to whom such notice shall have been mailed shall be in ‘the military service of the United States.”

They say that Helmecke was within the class subject to such regulation, and that he was, under and in pursuance of the directions of section 3, actually inducted into and was in the military service of the United States, and they point to the following evidence as supporting this view:

(a) Registration card of Arthur A. Helmecke, signed by himself, showing him to be a natural-born citizen, 28 years of age, not claiming any exemption; address given as San Benito.

(b) Photostat copy of form 146-A, sent by the local board to the Adjutant General in the fall of 1917, advising that Arthur A. Helmecke had been called by the local board to report and submit to examination on August 23, and that he had failed to appear.

(c) The deposition of James P. Harley, Adjutant General of Texas, ip. which he testified with reference to the photostat copy of the filed copy of the order to the person named therein, to wit, Arthur A. Helmecke, to report for military service, that it was the custom to accomplish the notice to report for military service in the case of any individual upon whom it was to be served in duplicate, and that in accordance with the custom and practice of his office the original 'was mailed to the person named therein, and the duplicate copy was filed in the office of the Adjutant General of Texas, and afterwards forwarded to the Adjutant General at Washington, and that the filed copy of photostat attached to the deposition was according to the records mailed to the Adjutant General of the army at Washington some time in 1919, and further testified, from the records and the photostat copy of the file copy only, that it referred to Arthur A. Helmecke, of San Benito, Texas, who according to the file copy was required to report for military service to the Adjutant General of Texas within five days from the date of the notice, to wit, five days from November 9, 1917.

In the course of the cross-examination it was made plainly to appear that Adjutant General Harley knew none of the facts that he had testified about of his own knowledge; that he testified only from records; that he identified the photostat copy, because it was a copy of the regular form used, and that his testimony that the original was mailed to Helmecke was based entirely upon the custom of his office; that he knew nothing personally about the mailing, or about the making of the original notice; that he had no personal knowledge whatever about any of the matters testified to, and that his testimony was simply from his general knowledge of how the affairs of the office of the Adjutant General were conducted; that he had no personal knowledge, nor did he ever have any personal knowledge, of the military status of the defendant, Helmecke, but that he testified from his knowledge of the rules and regulations made and established by the Provost Marshal General for the conduct of the draft, which were followed very carefully. He stated specifically that he did not mail the notice, that he did not know who mailed it, that he did not make out the notice himself, ■ and that he could not state who made it. He further testified that he had no personal recollection with reference to the notice; that he did not sign all thé notices that were sent out; that, it was his understanding that all copies sent out and all notices issued were signed, or sent under his direction.

(d) The photostat copy of the file copy of the notice to report for military service referred to in the deposition above, to wit, the photostat copy of the file copy of notice to Arthur A. Helmecke, of San Benito, from the Adjutant General of Texas to report for military service on November 14. This file copy is stamped, “Mailed November 9, 1917.” Form 146-B, official document certified; stating that Helmecke had been called for military duty on August 23, 1917, that being the date to submit to examination, and that he failed to present himself or to report. Form 4003, charging Helmecke with being a deserter.

To the admissibility of this evidence, as being wholly insufficient to bring Helmecke into the jurisdiction of the court-martial, relator at the hearing of the court-martial duly excepted, and now asserts that the record thus made is not sufficient to show the jurisdiction of the court-martial over him. It is conceded by the respondeat that, in order to establish the jurisdiction of the court-martial, the authorities hold that all jurisdictional facts must be alleged and appear of record absolutely, affirmatively, and unequivocally, and that an essential fact to the jurisdiction of the court-martial in this case is that the notice to report for military service was by the Adjutant General mailed to relator.

In Ex parte Jochen (D. C.) 257 Fed. 200, this court had occasion to advert to the nature of a court-martial tribunal, there saying:

“Of sucli weight ° with Congress has the right of trial by jury always been, that it has never left to implication or construction the question of whether a person is subject to military law, and in each case where military jurisdiction of that kind is assorted it is incumbent upon the military to put their finger on the act which confers the jurisdiction.’8

[1] On the other hand, there can be no doubt that the act under which It is claimed that relator was inducted Into the service is in all respects valid, and that the regulations promulgated' under the authority of the President have themsdves the force of lav?, and must be given effect accordingly. Arver v. U. S., 245 U. S. 370, 38 Sup. Ct. 159, 62 L. Ed. 349, L. R. A. 1918C, 361, Ann. Cas. 1918B, 856. Nor does the regulation under which it is claimed that Helmecke was inducted admit of any other construction than'that, if the notice was in fact mailed to Helmecke, he was, from the date specified in the notice, in the military service, and this irrespective of whether or not he actually received' the notice.

[2] It is therefore evident that the single question in this C3.se is whether or not the evidence shows, in that clear, unequivocal, and certain way, that the jurisdictional fact, to wit,, that the notice was mailed to Helmecke, has been established. In this view neither Ex parte Bergdoll (D. C.) 274 Fed. 458, Farley v. Ratliff (C. C. A.) 267 Fed. 682, Caplis v. U. S. (D. C.) 257 Fed. 840, or Linn Gale Case (unreporced case by Judge Duval West, no written opinion), cited and referred to by relator and respondent have any application to this case. In all those cases it was conceded that notice was mailed; the mere question was yvhether it was necessary to prove that it had been received', and, if so, whether the evidence sufficiently showed the receipt. Here, if the notice was mailed, Helmecke was inducted; if it was not mailed, he was not inducted. The determination of this single question, whether the evidence shows the mailing, determines whether the application of the relator shall be granted or denied.

I think it clear fiat Congress could have provided that all persons who registered for military duty should be, from and after that date, in the military service. It is equally clear that it did not so provide, and It is further clear, from the regulations governing the matter of induction, both the one under direct investigation here and subsequent ones, that it was contemplated that inductions should not take place automatically, but only after notice, and that the character of notice which it was thought all persons subject to the draft should be entitled to was that-of notice by mail, a character of notice which has often found judicial sanction (see Hurley v. Olcott, 198 N. Y. 132, 91 N. E. 270, 28 L. R. A. [N. S.] 239), and which rests upon the presumption, ordinarily one of fact, but, when provided by law as a form of notice, one of law, that a letter deposited in the mails will in due and ordinary course reach its destination and be delivered to the addressee. This presumption is of profound and universal application in commercial matters, and forms the basis upon the faith of which a great part of the commercial business of the country is conducted, and upon the strength of which courts ordinarily and universally act.

In Rosenthal v. Walker, 111 U. S. 193, 4 Sup. Ct. 386, 28 L. Ed. 395, the court says:

“The rule is well settled that, if a letter properly directed is proved to have been either put into the post office or delivered to the postman, it is presumed, from the known course of business in the Post Office Department, that it reached its destination at the regular time, and was received by the person to whom it was addressed.”

Or, as it was stated in Ruling Case Raw, vol. 21, p. 764:

“The presumption of the receipt of a letter rests absolutely upon proof of mailing, and in order to indulge the presumption of receipt there must be proof that the letter in question was mailed.”

Or, as it is stated in 22 Corpus Juris, p. 98, § 39:

“The receipt of a letter by the person for whom it is intended cannot be presumed unless it is proven that the letter was properly addressed to him.”

Or again (22 Corpus Juris, p. 99, § 40):

“In order to support a presumption of the receipt of a letter, there must be satisfactory proof that it was duly mailed, although such proof need not consist of direct and positive testimony as to the ultimate fact of mailing.”

It then appearing that the provision for mailing in the regulation in question was made, not°as an empty form, but upon the sound presumption that, if mailed, a notice will reach its destination in due course, it is evident that the provision for mailing was a substantial provision, and that it must be strictly and literally complied with, and that, without adequate proof of mailing, the jurisdiction of the court-martial falls. The rights of a civilian to be a civilian, and to invoke the constitutional right of trial by jury, and the other rights which are guaranteed to him, are substantial and vigorous, and, when these rights are sought to be taken from him under a compulsory regulation, the duty is upon the government to prove explicitly and clearly that each link in the chain which separates the relator from civil life is clearly established. In Ex parte Jochen, supra, the court took occasion to advert to the difference between a voluntary and compulsory enlistment, saying:

“Nor is there any violence done to the dictates of humanity and reason when a person, who has become voluntarily a member of the military establishment, has martial law invoked against him. The maxim, ‘Volenti non fit injuria,’ at once arises.”

Such is not the case here, and no presumption can be indulged to supply the place of the necessary jurisdictional fact. As stated in 10 R. C. L. 881:

“No presumption will be indulged that an officer acting under a naked statutory power, with a view to divest upon certain contingencies the title of the citizen, has done his duty and complied with the law; the purchaser, relying upon the execution of the power, must show that every preliminary step prescribed by law has. been followed.” Keane v. Connovan, 21 Cal. 291; Jewell v. Van Steenburgh, 58 N. Y. 85.

“Presumption in favor of the legality of official acts never goes to the extent of supplying a jurisdictional fact.” 10 R. C. L. 883; Hannah v. Chase, 4 N. D. 351, 61 N. W. 18, 50 Am. St. Rep. 656; Braden v. Hoffman, 46 Ohio St. 639, 22 N. E. 930.

In the light of these views, then, let us inquire what evidence there is that the jurisdictional requirement of mailing was complied with. In 21 R. C. L. 763, there is presented an excellent résumé of the authorities upon the question of the quantum and character of proof of mailing, and from this it appears that, while there is some conflict of authority in relation to commercial transactions, the ruling principle is that the fact o'f mailing, where that fact is an important one, must be proven, like any other fact, by direct or circumstantial evidence, and that, where there is no direct evidence of mailing, it is not sufficient proof of mailing to offer testimony merely that the general custom of an office was to mail all letters and notices.

[3] The better rule, and that which seems to be 'established by the weight of authority, is that in the absence of direct evidence there must be proof of an invariable custom or usage in an office of depositing mail in a certain receptacle, that the letter in question was deposited in such receptacle, and in' addition there must be testimony of the employee, whose duty it was to deposit the mail in the post office, that he either actually deposited that mail in the post office, or that it was his invariable custom to deposit every letter left in the usual receptacle, and that he never failed in, carrying out that custom. The law in the case is well stated in Wm. Gardam & Son v. Batterson, 198 N. Y. 175, 91 N. E. 371, 139 Am. St. Rep. 806, reported and annotated in 19 Ann. Gas. 651, while perhaps the best considered American cases on the subject are the opinions of Judge Johnson, of the Kansas City Court of Appeals of the state of Missouri, in Goucher v. Carthage Novelty Co., 116 Mo. App. 99, 91 S. W. 447, and Sills v. Burge, 141 Mo. App. 148, 124 S. W. 606.

Now, in what respect does the proof in this case measure up to the requirements? There is absolutely no evidence of any person that he mailed the notice, while the testimony of the Adjutant General is positive that he had no personal knowledge whatever either of the signing, making, or the mailing of this notice, and that he only testified, after seeing the photostat copy of the file copy, that in his opinion from the general custom of the office, the notice was actually mailed. Outside of the evidence of the Adjutant General there is no evidence whatever proving, or tending to prove, that the notice was mailed, while there was evidence on the part of relator that he did not receive any notice, though he left his forwarding address with the postmaster at San Benito, and evidence on the part of the postmaster corroborating the relator’s testimony that he did leave his forwarding address.

This testimony of the defendant and the postmaster is adverted to, not that it would have any bearing upon the matter, had there been any evidence of mailing, because, as I have above-stated, the regulations have made the ordinary presumption of fact attached to the depositing of a letter in the mail an unrebuttable presumption of law, but because, if the defendant had been silent, there might have arisen some inference against him that he received the notice,, from which negative inference, from failure to testify, it might have been claimed that' receipt could have been inferred. The case then stands with no evidence whatever before the court, except the testimony of the Adjutant General, which is not in the true sense of the word testimony at all, but merely hearsay. There is a legal presumption in favor of the jurisdiction of a court of record which has been invested with general jurisdiction. No such presumption arises with reference to a court-martial. It must prove the jurisdictional facts on which it relies. The fact in this case upon which that authority is grounded, and the only fact, is that this relator was inducted into military service. The proof, of that induction must be found in the fact of mailing, and proof of that fact is wholly wanting, unless there is accepted as testimony the opinion of the Adjutant General, who is not in any sense acquainted with the facts, but who testified merely of his opinion that, from his general knowledge of his office affairs, he believes that certain facts transpired.

The constitutional rights of a civilian to be and remain a civilian cannot be taken from him in such fashion. For the court to hold that the authority of the court-martial in this case is established on this kind of proof would be tantamount to holding that the Adjutant General, and his force of assistants, could by industriously making and stamping cards “mailed” have placed the whole of the population in military service, and brought them all under the odious status of a deserter. It appearing, then, that the record wholly fails to show that the relator has ever been in the military service of the United States in accordance with the articles of war and the regulations adopted and promulgated in connection with that service, it is ordered that the writ applied for will issue to the respondent, requiring and directing him to release the relator from military custody.

The respondent has requested leave, should it appear to the court that the present record is not sufficient.!» sustain the jurisdiction of the court-martial, to offer additional evidence on the fact of mailing. See, Givens v. Zerbst, 255 U. S. 11, 41 Sup. Ct. 227, 65 L. Ed. 475. This leave will be granted, and the issuance of the writ of habeas corpus will be stayed for 10 days, when, if respondent has additional evidence to offer on the point of mailing, giving the names of the witnesses, the writ shall be stayed until a hearing of such additional witnesses can be had. Should the respondent within 10 days from this date file no such statement, the writ of habeas corpus will issue to respondent, requiring and directing, him to release the relator from military custody.