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YATES v. HUNTER, Warden.

No. 3842.

United States Court of Appeals Tenth Circuit.

April 23, 1949.

*348No appearance for appellant.

Eugene W. Davis, Asst. U.S. Atty., of Topeka, Kan. (Lester Luther, U.S. Atty., of Topeka, Kan., on the brief), for appellee.

Before PHILLIPS, Chief Judge, and HUXMAN and MURRAH, Circuit Judges.

PHILLIPS, Chief Judge.

This is an appeal from an order discharging a writ of habeas corpus, by which Yates sought discharge from the United States Penitentiary at Leavenworth, Kansas.1 While serving as a seaman second class in the United States Navy, Yates was convicted by a general court-martial convened by order of the Commandant, U.S. Naval Operating Base, Manila-Subic, Philippine Islands, on a specification charging desertion and four specifications charging robbery. The sentence imposed was that Yates should be reduced to- the rating of apprentice seaman, dishonorably discharged from the United States Naval Service, and confined for a period of 20 years. Thereafter, on November 15, 1945, Mark L. Hersey, Jr., Commodore, U. S. Navy, Commandant, U.S. Naval Operating Base, Manila-Subic, reduced the term of imprisonment to 18 years, otherwise approved the conviction and sentence, and designated the United States Naval Disciplinary Barracks, Terminal Island (San Pedro), California, as the place of confinement. Thereafter, on January 4, 1945, by order of J. Maginnis, Captain, United States Navy, Director, Corrective Services of the Navy Department, Yates was transferred to the United States Penitentiary, McNeil Island, Washington. Thereafter, on December 3, 1947, Yates was transferred by order of the Attorney General to the United States Penitentiary at Leavenworth, Kansas.

Article 7 of the Articles for the Government of the Navy, 34 U.S.C.A. § 1200, reads as follows:

“Imprisonment in lieu of death. A naval court-martial may adjudge the punishment of imprisonment for life, or for a stated term, at hard labor, in any case where it is authorized to adjudge the punishment of death; and such sentences of imprisonment and hard labor may be carried into execution in any prison or penitentiary under the control of the United States, * *

Article 4 of the Articles for the Government of the Navy, 34 U.S.C.A. § 1200, provides that “punishment of death * * * may be inflicted on any person in the naval service who * * * deserts * * * ” The sentence of Yates, in addition to the term of imprisonment, specified “and to suffer all the other accessories of said sentence as prescribed by Section 622, Naval Courts and Boards.” Such accessories include hard labor and loss of pay while in confinement.

The sentence imposed was lawful under Article 7, supra, and under that Article it could be lawfully carried into execution in any penitentiary under the control of the United States. It follows that Yates is lawfully imprisoned in the United States Penitentiary at Leavenworth.

Affirmed.

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