confined in Multnomah county jail, by one James H. Lappeus, chief of police of the city of Portland, for the purpose of aiding the officers of the military department of the Columbia to transport petitioner to Alaska, upon the pretence that a crime has been committed by the petitioner against the rules and regulations of the army of the United States; and that the imprisonment of petitioner is illegal in this: that petitioner is a citizen of the United States, and not amenable to said rules and regulations.

On May 11, respondent Lappeus produced the body of the petitioner, as commanded by the writ, and filed a return thereto, stating that the petitioner was placed in his custody on May 7, 1871, by one lieutenant Dennison of the army of the United States, and the cause of his imprisonment, as he was informed.

Thereupon, it appearing from the return of said Lappeus that the petitioner was really in the custody of the military authority for the department of the Columbia, and that said Lappeus only held said petitioner in his custody casually, as a jailer for said authority, it was ordered that petitioner's counsel cause a copy of the petition, writ, return, and this order, to be served upon the general commanding the department of the Columbia, within twentyfour hours, to the end that such officer might take such steps to appear and contest the petition, as he may be advised to be necessary and proper, and that the proceeding be continued until May 15.

On May 15, the parties aforesaid appeared, and also the general commanding the department, by Louis V. Caziarc, A. A. A. G., who then stated in writing that petitioner was a soldier of the army of the United States, and in the lawful custody of the military authority of this department, and as such was held for violations of the rules and regulations for the government of the army; and that since May 8, respondent Lappeus only held petitioner because of the writ herein. On the same day the petitioner demurred to the returns to the writ as insufficient in law to justify the detention.

Thereupon an order was made restoring the custody of

1871.]

Opinion of the Court--Deady, J.

the petitioner to the authority of the general commanding the department of the Columbia, to be by him and those acting under his orders or authority, safely kept within the jurisdiction of this court, and produced before the judge thereof on May 18, and that said general then make a return herein in due form of the causes and reasons for detaining the petitioner in custody.

On May 18, respondent Caziarc filled an answer to the petition, and the petitioner replied thereto.

On May 19, the cause was argued and submitted upon the answer and replication and exhibits thereto, and taken under advisement.

Theodore Burmeister and Charles R. Bellinger, for petitioner. Louis V. Caziarc, respondent, in person.

DEADY, J. From the pleadings and exhibits it appears: 1. That William B. Bird, the petitioner, was duly enlisted as a private in the army of the United States on June 15, 1867, to serve for the period of three years.

2. That at the post of Sitka, Alaska, by the sentence of a court-martial, convened at said post in pursuance of special orders No. 70, dated October 14, 1869, the petitioner, then being a private in battery H, second artillery, was sentenced to three months' hard labor and to be dishonorably discharged from the army; and that about January 23, petitioner was so discharged at the post aforesaid.

3. That the petitioner was tried before said court-martial upon two charges and sundry specifications thereunder, to the effect, that said petitioner, about September 25, 1869, refused to be sworn or testify as a witness before a board of officers convened at the post aforesaid, to investigate certain accusations against sundry citizens and enlisted men, and that on October 18, 1869, he wrote a disrespectful letter to his department commander, General J. C. Davis.

4. On the trial, at Sitka aforesaid, the petitioner made the preliminary objection that the court-martial could not lawfully take cognizance of the charges against him, because it was convened by said Davis, who was also his

Opinion of the Court-Deady, J.

[May,

accuser; and on September 24, 1870, the secretary of war, upon the report and opinion of the judge-advocate-general, sustained the objection, and set aside the sentence of the court as illegal and void on that account, and also directed that the petitioner "be brought to trial on a charge of manslaughter to the prejudice of good order and military discipline," committed in the killing of lieutenant L. C. Cowan, of the United States revenue service, as hereinafter stated; and afterwards, on November 10, 1970, the petitioner, by special order No. 150, of headquarters of the department of the Columbia, in pursuance of the aforesaid order of the secretary of war, was "reinstated in his rights, duties, and obligations as a soldier, as if no such proceedings had been taken, and as of the date of the order appointing the court," to wit: October 14, 1869.

5. That on March 8, 1870, by the verbal order of said Davis to Captain Brady, commanding post of Sitka, the petitioner was arrested and confined at said post upon the charge of killing said Cowan, which order was, on June 14, 1870, confirmed and continued by a written order from said Davis to said Brady, instructing the latter to "retain petitioner in custody until further instructions from the proper authority;" and, as appears from the report of a board of officers convened at the post aforesaid, on March 10, 1870, the petitioner, on the night of February 25, 1870, in an unlawful attempt to take the life of his former company commander, Captain Dennison, in a saloon at Sitka, shot and killed said Cowan under circumstances which "showed a perfect disregard of human life," and constituted "an aggravated case of manslaughter."

6. That by a court-martial convened at Sitka aforesaid, November 30, 1870, pursuant to special order No. 149, of headquarters of the department of the Columbia, and afterwards adjourned to Fort Vancouver, Washington territory, the petitioner was tried and found guilty of the charge of "murder, to the prejudice of good order and military discipline," committed in the killing of Lieutenant Cowan as aforesaid, and by said court was, among other things, sentenced to be dishonorably discharged from the

1871.]

Opinion of the Court--Deady, J.

service of the United States, and to be confined at hard labor for the period of fifteen years in such penitentiary as the commanding general may designate; and on February 24, 1871, said sertence was approved by the general commanding the department of the Columbia, and ordered to be executed in Alcatraz island, in the harbor of San Francisco, until otherwise ordered by the secretary of war.

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7. That in general court-martial order, No. 3, dated April 11, 1871, the proceedings of the court-martial last aforesaid were set aside as null and void, for the reason that murder, being a capital crime, is not legally cognizable by a court-martial." Such order also stated and directed as follows: "Moreover, the facts disclosed in the evidence show that the homicide was committed in a saloon in the town of Sitka, when the prisoner was de facto a citizen, and held no such practical relations to the military service, as to connect his acts with its good order or discipline. The prisoner will be turned over for trial to the Federal Judiciary;" and that, in pursuance of such order, the petitioner, at the time of the allowance and service of the writ, was being conveyed to Washington territory by lieutenant Dennison aforesaid, to be there turned over to the United States courts for trial therein upon said charge of murder. Two principal questions arise in this case, and were argued by counsel.

1. Was the petitioner a soldier on February 25, 1870, when he committed the homicide at Sitka? and

2. Can a soldier be detained in custody by military authority, for trial or lawful disposition after his term of service expires, on account of an act committed during such service?

Upon authority and the plainest reason both these questions must be answered in the affirmative. The sentence of the court-martial dishonorably discharging the petitioner from the service was set aside as null and void, because of the want of jurisdiction in the court. The proceedings of the court having been declared by competent authority to have been void ab initio, in contemplation of law, the status of the petitioner was not changed in any particular by

Opinion of the Court-Deady, J.

[May,

reason of it. This conclusion necessarily follows from the premises. The proposition is so axiomatic that it scarcely admits of argument, and needs only to be stated for the truth of it to be perceived. The same rule obtains in relation to the proceedings of all courts, civil as well as military. A void judgment or sentence works no change in the status of the person or thing against or concerning which it is given or pronounced.

A sentence of divorce passed in an inferior court, which is afterward set aside as null and void on appeal, would not affect the status of the parties thereto. They would still be husband and wife, the same as if the sentence of the inferior court had never been pronounced, and that, too, during all the period between such sentence and its reversal.

A judgment convicting a party of a felony, when reversed for error, is considered as never having been given, and does not affect the rights or liabilities of such party, although he may have been imprisoned under it during the interval between its rendition and reversal. It may be said that in some instances this rule works hardly, but the subject admits of no other, and in the great majority of cases it is well adapted to the ends of justice. Upon a second conviction, the punishment upon the first and erroneous one can and should be taken into consideration. Besides, it must be borne in mind that the reversal is procured by the party affected by the judgment or sentence, and for his benefit. If the petitioner had not procured the reversal of the sentence discharging him from the service, his subjection to military authority growing out of his enlistment on June 15, 1867, would have then ceased; but, having procured that sentence to be set aside, upon the allegation not merely that it was erroneous, but null and void, it does not lie in his mouth to say that, nevertheless, the discharge given in pursuance and execution of it was valid, and terminated his contract of enlistment months before the expiration of his term.

True, it may be, as stated in general court-martial order, No. 3, that the petitioner at the date of the homicide was a citizen de facto; but it is equally true, and more material,