David G. Barsotti, Denver, Col., for appellant.
James C. Waller, Major, J.A.G.C., Department of the Army, Washington, D. C. (Wilbur G. Leonard, U. S. Atty., Topeka, Kan., and Thomas A. Ryan, Lieutenant Colonel, J.A.G.C., Department of the Army, Washington, D. C., on the brief), for appellee.
Before PHILLIPS, LEWIS and BREITENSTEIN, Circuit Judges.
PER CURIAM.
Appellant seeks review of an order of the District Court for the District of Kansas discharging a petition for a writ of habeas corpus. Appellant is presently confined as a military prisoner at the United States Penitentiary at Leavenworth pursuant to the judgment and sentence of a general court martial imposed after conviction of the offense of unpremeditated murder. Appellant was convicted of the murder of a fellow soldier, the offense occurring in Korea in 1953, and was prosecuted under Article 118, Uniform Code of Military Justice, 10 U.S.C.A. § 918. The sole contention of appellant is that the power to enact Article 118 is not within the power granted Congress under Article I of the Constitution and he is therefore within the protection of individual rights afforded in the Fifth Amendment.
The contention has long since been considered and rejected and there can be no doubt that murder can be prosecuted within the field of military offenses when proper jurisdiction exists. Coleman v. State of Tennessee, 97 U.S. 509, 24 L.Ed. 1118; Lee v. Madigan, 358 U.S. 228, 79 S.Ct. 276, 3 L.Ed.2d 260; Caldwell v. Parker, 252 U.S. 376, 40 S.Ct. 388, 64 L.Ed. 621; Bennett v. Davis, 10 Cir., 267 F.2d 15. See also Johnson v. Sayre, 158 U.S. 109, 15 S.Ct. 773, 39 L.Ed. 914.
Affirmed.