OpenJurist

234 F2d 615 Wilkinson v. L Fowler

234 F.2d 615

Frederick H. WILKINSON, Warden, United States Penitentiary, Atlanta, Georgia, Appellant,

v.

Harriel L. FOWLER, Appellee.

No. 15967.

United States Court of Appeals Fifth Circuit.

June 27, 1956.

Capt. John A. Smith, Jr., James W. Dorsey, U. S. Atty., Charles D. Read, Jr., J. Robert Sparks, Asst. U. S. Attys., Atlanta, Ga., and Clifford F. Cordes, Fort McPherson, Ga., for appellant.

Leon S. Epstein, Atlanta, Ga., for appellee.

Before RIVES, CAMERON and BROWN, Circuit Judges.

PER CURIAM.

1

The appellee and two other soldiers, DeCoster and Jackson were convicted by a general court-martial in Korea, of premeditated murder, in violation of Article of War 92 (formerly 10 U.S.C.A. § 1564, now 50 U.S.C.A. §§ 712, 714, arts. 118, 120), and of attempted rape, in violation of Article of War 96 (formerly 10 U.S. C.A. § 1568, now 50 U.S.C.A. § 728, art. 134), both offenses having allegedly been committed on an adult Korean female at Chudong-ni, South Korea, on March 16, 1951. On writ of habeas corpus, DeCoster, apparently the most guilty one of the three, has since been discharged by the Seventh Circuit, Judge Finnegan dissenting. DeCoster v. Madigan, 7 Cir., 223 F.2d 906. On the other hand, Jackson's petition for habeas corpus was later denied by the district court, Jackson v. Humphrey, D.C.M.D.Pa., 135 F.Supp. 776, and its judgment was affirmed by the Third Circuit on May 31, 1956, Jackson v. Taylor, 234 F.2d 611. The present petition was considered by the district court after the decision of the Seventh Circuit and before that of the Third, and the district court followed the majority opinion of the Seventh Circuit. The facts and the law have been so adequately discussed in the cases previously reported, that we refrain from stating our reasoning further than to say that, after a careful study of the record and briefs and consideration of the oral argument, we are in full accord with the dissenting opinion of Circuit Judge Finnegan in DeCoster v. Madigan, supra, the opinion of District Judge Follmer in Jackson v. Humphrey, supra, and the opinion of Circuit Judge Hastie in Jackson v. Taylor, supra.

2

The judgment is, therefore, reversed and judgment here rendered denying the petition for writ of habeas corpus.

3

Reversed and rendered.