Before GOODRICH, McLAUGHLIN and KALODNER, Circuit Judges.
This is an appeal from a district court decision denying the petitioner habeas corpus, D.C.M.D.1958, 161 F.Supp. 112. Albert H. Grisham was a civilian accountant employed by and serving with the United States Army in France. While assigned overseas Grisham and his wife resided in a rented apartment in Orleans. Grisham was arrested by French officials as a result of the death of his wife in December, 1952. At the request of the Army he was turned over to military authorities and was charged by them with the premeditated murder of his wife, a capital offense. 10 U.S.C. § 918 (Supp. V, 1958). He was tried by a court-martial and convicted of unpremeditated homicide. Having been sentenced to prison, he now seeks release on habeas corpus proceedings.
The foundation of this petition is the Supreme Court's decision in Reid v. Covert, 1957, 354 U.S. 1, 77 S. Ct. 1222, 1 L. Ed. 2d 1148.Our difficulty in this case is to make up our minds how far Reid v. Covert takes us. One thing is clear. Under that decision the wife of a man in military service who accompanies her husband abroad cannot in peacetime be tried in a foreign country by a United States military court-martial for a capital crime. But the opinion by Mr. Justice Black was joined by only three of his colleagues. Two others, Mr. Justice Frankfurter and Mr. Justice Harlan, rendered separate concurring opinions and two, Mr. Justice Clark joined by Mr. Justice Burton, dissented. *fn1
The district court, disposing of the instant case, relied largely on Judge Holtzoff's opinion in United States ex rel. Guagliardo v. McElroy, D.C.D.C.1958, 158 F.Supp. 171. But that decision was overruled by the Court of Appeals for the District of Columbia Circuit by a divided court (2-1). 259 F.2d 927. Guagliardo involved the same statute as that in the Covert case. It is article 2(11) of the Uniform Code of Military Justice, 10 U.S.C. § 802(11) (Supp. V, 1958), which reads as follows:
"(11) Subject to any treaty or agreement to which the United States is or may be a party or to any accepted rule of international law, persons serving with, employed by, or accompanying the armed forces outside the United States. * * *"
are subject to the authority of the courtsmartial described by the statute.
In the Guagliardo case the petitioner was a civil service employee of the Air Force. The crime with which he was charged was not a capital crime but larceny. The District of Columbia Circuit Court said that it was not going to decide any constitutional question: that since the Supreme Court had said the section of the Military Justice Code when applied to persons "accompanying the armed forces" [158 F.Supp. 173] was unconstitutional the whole clause fell.
With due deference to a very competent court, we cannot join in this ground for granting a habeas corpus writ. The statute in question expressly contains a reservation clause providing:
"If a part of this Act is invalid, all valid parts that are severable from the invalid part remain in effect.If a part of this Act is invalid in one or more of its applications, the part remains in effect in all valid applications that are severable from the invalid applications." Pub.L.No. 1028, 84th Cong., 2d Sess., 70A Stat. 640 (Aug. 10, 1956), § 49(d).
We think this provision controls, and that we must look to see whether a difference may not exist as to persons "serving with" or "employed by" from those "accompanying" the armed forces.
Granted that authority compels the conclusion that a wife accompanying her husband abroad is not to be tried by court-martial, it does not follow that persons "serving with" or "employed by" the armed forces may not be so tried. At least it does not so follow until the Supreme Court says that it does. We do not get helpful authority, then, from the Guagliardo opinion except for a reason we cannot share.
So we are confronted with the problem of the application of the Covert case to a civilian employee of the armed forces serving abroad, prosecuted for a capital offense in peacetime and tried by court-martial. Grisham was charged in France with premeditated murder, a capital offense. The conviction was for unpremeditated murder which is not a capital offense.
The question involved is one which we think it is fair to say was left open by the language of Mr. Justice Black's opinion in the Covert case. On page 22 of ...