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Concurring Opinion
Burton

United States Supreme Court

339 U.S. 103

Hiatt  v.  Brown

 Argued: Feb. 6-7, 1950. --- Decided: March 13, 1950

See 339 U.S. 939, 70 S.Ct. 672.

Consistent interpretation of Article of War by the Army as vesting a discretion in appointing authority as to availability of a member of the Judge Advocate General's Department for appointment as law member of a general court-martial was entitled to great weight in determination by Supreme Court of the meaning of the article. Articles of War, art. 8, 10 U.S.C.A. § 1479.

Exercise of discretion conferred on appointing authority by Article of War in matter of designating a member of the Judge Advocate General's Department as law member for general court-martial could be reviewed by courts only if gross abuse of that discretion would have given rise to a defect in jurisdiction of the court-martial. Articles of War, art. 8, 10 U.S.C.A. § 1479.

Under Article of War requiring that law member of general court-martial be an officer of Judge Advocate General's Department unless one was not available for the purpose, neither appointment of officer from Judge Advocate General's Department to a capacity other than law member on court nor reassignment of that officer to other duty at time of trial disclosed abuse of discretion. Articles of War, art. 8, 10 U.S.C.A. § 1479.

Where court-martial had jurisdiction of accused and of offense of murder charged, and acted within its lawful powers, correction of any errors was for the military authorities and it was improper for Court of Appeals to extend its review, for purpose of determining compliance with due process of law, to such matters as propositions of law set forth in Staff Judge Advocate's report, sufficiency of evidence to sustain conviction, adequacy of pretrial investigation, and competency of law member and defense counsel. Articles of War, arts. 8, 92, 10 U.S.C.A. §§ 1479, 1564; 28 U.S.C.A. § 1254(1); U.S.C.A.Const. Amend. 5.

[Syllabus from pages 103-105 intentionally omitted]

Mr. Stanley M. Silverberg, Washington, D.C., for petitioner.

Mr. Walter G. Cooper, Atlanta, Ga., for respondent.

Mr. Justice CLARK delivered the opinion of the Court.

NotesEdit

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).