Before GOODRICH, KALODNER and HASTIE, Circuit Judges.
A general court-martial, convened in Korea on June 8, 1951, found the petitioner, a soldier in the United States Army, and two other soldiers guilty of the premeditated murder of a Korean woman and of an attempt to rape her somewhat earlier the same day. Under military law either death or life imprisonment is the mandatory punishment for premeditated murder. Attempted rape is punishable by imprisonment not to exceed 20 years. See Table of Maximum Punishments, Manufal for Courts-Martial, U.S. 1951, 219, 221. Each of the accused soldiers was sentenced to life imprisonment. The convening authority approved this action, but a board of review, while sustaining the conviction of attempted rape, found the conviction of murder unwarranted and set it aside. With reference to the sentence imposed by the court-martial the board of review ruled as follows:
"By reason of the * * * action herein taken as to the murder specification, the sentences [imposed upon the three soldiers] of confinement at hard labor for life are improper, Under the circumstances in this case, a sentence of dishonorable discharge, total forfeiture and confinement at hard labor for twenty (20) years is appropriate for conviction of an attempt to commit rape."
Procedurally, the board undertook to modify and reduce the life sentence to a sentence of imprisonment for 20 years and order the sentence affirmed as thus modified.United States v. Fowler, et al., 1952, 2 C.M.R. 336. The United States Court of Military Appeals denied a petition for further review. 1952, 1 U.S.C.M.A. 713. It is conceded that no question was raised before that tribunal as to the authority of the board of review to modify the sentence in the manner described above.
To serve this 20 year term petitioner was committed to a federal penitentiary in the Middle District of Pennsylvania. While there confined he has instituted this habeas corpus proceeding in the district court challenging the validity of the modified sentence.
Petitioner does not claim any deprivation of constitutional right. He contends only that under military law the board of review was without authority to change the life sentence to one of 20 years' imprisonment, instead of ordering either a new trial or his release. One of the petitioner's confederates, who had been convicted with him and whose sentence had been reviewed and modified at the same time and in the same way, but who was imprisoned in Indiana, has already successfully urged this contention in the Seventh Circuit. DeCoster v. Madigan, 7 Cir., 1955, 223 F.2d 906. However, in the present case, the district court was not persuaded by the claim of invalid sentencing and, accordingly, denied the petition. Jackson v. Humphrey, 1955, 135 F.Supp. 776. This appeal followed.
As stated above, the question of the reviewing board's resentencing power under military law, now raised by petition for habeas corpus, was not raised by the petitioner before the Court of Military Appeals when he asked that court to review the action of the board of review. Therefore, the government argues that the issue should not be considered now for the first time on habeas corpus.Cf. Burns v. Wilson, 1953, 346 U.S. 137, 73 S. Ct. 1045, 97 L. Ed. 1508. But, believing the district court reached the correct conclusion on the merits, we shall not decide whether the same result could properly have been reached by denying the propriety of habeas corpus as a remedy in the circumstances in this case. Compare the reasoning of the concurring opinion in United States ex rel. Auld v. Warden of New Jersey State Penitentiary, 3 Cir., 1951, 187 F.2d 615, 620.
The appropriate procedures on review and the powers of the reviewing authorities in this case are prescribed by the Uniform Code of Military Justice, 50 U.S.C.A. c. 22, which became effective on May 31, 1951. Article 66(c) of that code confers and defines the power of a board of review as follows:
"In a case referred to it, the board of review shall act only with respect to the findings and sentence as approved by the convening authority. It shall affirm only such findings of guilty, and the sentence or such part or amount of the sentence, as it finds correct in law and fact and determines, on the basis of the entire record, should be approved. * * *" 64 Stat. 128, 50 U.S.C.A. § 653(c).
Here, the board of review, in changing the petitioner's sentence from life imprisonment to 20 years, thought it was properly exercising the power Article 66(c) gives it to "* * * affirm * * * such part or amount of the sentence, as it finds correct * * *." Opposing this view, petitioner argues that the 20 year term approved by the reviewing authority is not a "part or amount of the sentence" imposed by the court-martial, but rather is a distinct original sentence and, therefore, beyond the power of the reviewing board.
To resolve this dispute we must discover for what offense or offenses the court-martial imposed the life sentence. Unquestionably, the accused was found guilty of two distinct offenses. And thereafter, in imposing a single sentence, the court did not state the relation of that sentence to either or both of the offenses. However, it is the normal, traditional and well understood practice in the administration of military justice that "there shall be but a single sentence covering all the convictions on all the charges and specifications upon which the accused is found guilty, however separate and distinct may be the different offenses found, and however different may be the punishments called for by the offenses." 1 Winthrop, Military Law, 2d ed. § 615. And see Carter v. McClaughry, 1901, 183 U.S. 365, 393, 22 S. Ct. 181, 46 L. Ed. 236; United States v. Keith, 1952, 1 U.S.C.M.A. 444, 448. And at the time of this trial that usage was embodied in the authoritative teaching of Manual for Courts-Martial that "[it] is the duty of each member [of the court] to vote for a proper sentence for the offense or offenses of which the accused has been found guilty, * * *" Manual for Courts-Martial, U.S. 1951, Art. 76b(2). Indeed, this gross sentence practice practice is so firmly established that it seems to be followed routinely without recital that the court is doing so.
But special circumstances are pointed out here to lend color to a claim that this case is different. First, the law efficer followed the normal practice of advising the court after verdict and before sentence as to the maximum punishment it might impose. See Manual for Courts-Martial, U.S. 1951, Art. 76b(1). In this connection he told the court that, the prisoner having been found guilty of murder, the court's sentencing power was limited to two alternatives, a death sentence or a sentence of life imprisonment. He said nothing about punishment for attempted rape. So, petitioner reasons, punishment for attempted rape was not in fact considered by the court and was not in fact or law a component of its sentence. Second, petitioner attempts to reinforce this position by arguing that the sentence imposed is on its face the minimum sentence for premeditated murder, and that this establishes as a matter of arithmetic that no punishment was imposed for attempted rape.
Ingenious though this line of argument is, and persuasive though it has been to a majority of the division which decided DeCoster v. Madigan, supra, in another circuit, we reject it. To begin with, it was not possible for the court which found the petitioner guilty of both premeditated murder and attempted rape to order imprisonment for either a longer or a shorter period than it did. For under military law the death sentence is the only lawful alternative to life imprisonment, once a defendant has been found guilty of premeditated murder, whether alone or in addition to some other crime. Thus, the failure of the law officer to say anything to the court about the maximum punishment for attempted rape suggests nothing more than that he understood how pointless such an explanation would have been in the posture of this case. Moreover, the arithmetical argument that a sentence for two offenses must be longer than the minimum sentence required for one of them ignores both the practical difficulty of imprisoning for life plus any number of years and the absence of provision for any such oddity in the rules which control military sentencing. See Manual for Courts-Martial, U.S.1951, Art. 76b(4) and Appendix 13. We conclude that in the circumstances of this case the court-martial imposed and military law reasonably recognizes the single sentence of life imprisonment ...