MaddeN, Judge,
announced the judgment of the court, and delivered the following opinion;
The plaintiff was, on September 23, 1948, dismissed from the United States Marine Corps pursuant to his conviction and sentence, on March 12,1948, by a general court-martial. He was, before his dismissal, a colonel, and had had almost 25 years of active service.
The plaintiff was stationed in China during the last period of his service. On January 15, 1948, he was brought to trial before a properly convened and constituted general court-martial. Sessions of the trial were held in three different cities in China. The trial ended on March 12, 1948, with the conviction of the plaintiff.
The charges on which the plaintiff was tried are quoted in our findings. The charges had to do with false statements made by the plaintiff as to the ownership of goods which he shipped through the facilities of the Marine Corps, and as to the payment for such goods; illegal use of the Marine Corps mail facilities; illegal importation of drugs; and, violation of naval regulations.
The court-martial found the plaintiff guilty on most of the charges, and sentenced him to dismissal from the United States Marine Corps and from the United States naval service. The court-martial proceedings, conviction and sen tence were approved by the convening authority, and by the Acting Secretary of the Navy except that the latter official set aside the convictions on certain of the charges, but approved the convictions on the other charges, and the sentence, and ordered the plaintiff to be dismissed from the service. As we have seen, he was dismissed on September 28, 1948.
The plaintiff requested the United States Court of Military Appeals to review his conviction and sentence. That court dismissed the plaintiff's petition for review for lack of jurisdiction, apparently because the proceedings in the plaintiff's case had occurred before the establishment of the Court of Military Appeals.
The plaintiff contends that, although the court-martial which tried and sentenced him had jurisdiction at the beginning of the proceeding, it lost jurisdiction by its failure and refusal to accord to the plaintiff, during the course of the trial, various constitutional rights. He says that the court's refusal of his request that the trial be a closed trial instead of a public trial had the effect of preventing him from obtaining the testimony of witnesses, which testimony would have been favorable to him. The court-martial deliberated over the plaintiff's request and concluded that the plaintiff had not shown that a public trial would be prejudicial to his defense. When the witness Boellhoff who, the plaintiff says, would have given testimony favorable to him in a closed trial, was later called as a witness, he refused to testify, and, he being a foreigner and the court being held in a foreign country, he could not be compelled to testify. In his full unsworn statement refusing to testify, he did not say that he would testify if the trial were closed, and the plaintiff's counsel did not ask him if he would. He did not say that his testimony would be favorable to the plaintiff, except as that might be inferred from the following part of his unsworn statement:
I am sorry that I cannot be able to clarify questions which might also clear the defendant in some charges which he probably has against him. They are not exactly known to me .
The action of the court-martial in denying the plaintiff's request for a closed trial lay well within the discretion which must be accorded to a trial court, either civil or military.
The plaintiff contends that the admission in evidence, in the court-martial, of the testimony of Boellhoff and of another person, Krinkevitch, given before a Navy Court of Inquiry, was a violation of the plaintiff's constitutional right to be confronted by witnesses who gave testimony unfavorable to him.
Before the plaintiff was charged with the offenses for which he was tried and sentenced, a Court of Inquiry had heard evidence relating to transactions in which the plaintiff was involved. The plaintiff had been named as a defendant in the Court of Inquiry proceedings, had been present in person and by counsel, had cross-examined Boellhoff, and had declined the tendered opportunity to cross-examine Krinkevitch.
The statutory provisions relating to Navy Courts of Inquiry, applicable at the time of the proceedings here involved, are in 34 U.S.C. (1946 ed.) § 1200, Articles 55 to 60. Article 60 provides:
Proceedings ; authentication; use in evidence.
The proceedings of courts of inquiry shall be authenticated by the signature of the president of the court and of the judge advocate and shall, in all cases not capital, nor extending to the dismissal of a commissioned or warrant officer, be evidence before a court martial, provided oral testimony cannot be obtained.
The comparable provision under the Uniform Code of Military Justice, enacted May 5, 1950, 64 Stat. 108, is in 50 U.S.C. (1952 ed.) § 625. The provisions concerning the setting up of and the procedure in Courts of Inquiry under the Uniform Code are in 50 U.S.C. (1952 ed.) § 731.
Since the plaintiff was a commissioned officer and his sentence was dismissal from the service, the court-martial committed an error of law in the reception of the Court of Inquiry evidence. As this court explained, with citation of authority, in Graham v. United States, 136 Ct. Cl. 324, neither this court nor any other court sits as a court of appeals to correct errors of law which may be made by courts-martial and the military hierarchy which reviews the decisions of such courts. We will not go over that well-ploughed ground again.
The plaintiff contends that the error committed by the court-martial was not a mere error of law. It was, he contends, a violation of a constitutional right. The plaintiff is mistaken. As this court decided in the Qrahann case, supra, we could not possibly hold that the Constitution forbids the use of Court of Inquiry evidence in court-martial proceedings unless we are ready to hold that the statute quoted above, which has been in the statute books for almost 100 years, is unconstitutional. There could be no constitutional difference between the admissibility of evidence in a trial in which an officer is sentenced to dismissal, and nothing more, and a trial in which he is sentenced to a heavy fine, or to a period of imprisonment at hard labor, or both. In the latter case Congress has expressly authorized the admission of the Court of Inquiry evidence.
The Constitution does not forbid the use of evidence which has been taken in earlier proceedings, if the witness has become unavailable at the time of the subsequent trial. The reception of such evidence is, in a sense, a departure from the hearsay rule. As such, it is in the company of many other time-honored exceptions to the hearsay rule. Most of the other exceptions have been made by courts, in judicial decisions. They have been based upon the philosophy that it is a serious thing to permit justice to miscarry, or to be frustrated, when there is trustworthy evidence available, and the exceptions are instances in which, for one reason or another, the courts have thought that evidence of the type presented was trustworthy.
If the courts have been able, without violating the Constitution, to create numerous exceptions to the hearsay rale, is there any imaginable reason why Congress cannot, in one instance, do likewise ?
The extensive discussion by Dean Wigmore in his treatise on evidence, beginning in volume V, section 1395, shows that there is no constitutional inhibition of the reception of evidence of the kind here involved. His discussion shows, of course, that if this kind of evidence is rejected, the result may be a complete failure of justice. He says, at page 147 of volume V:
(b) There is on principle no distinction, as to the conditions of necessity for using depositions and former testimony, between civil and criminal cases. If absence from the jurisdiction (for example) is a necessity in the one class of cases, it is equally a necessity in the other. The needs of public justice are as strenuous as those of private litigation. It is even more necessary that an offender against the community be duly punished than that a debtor discharge his private obligation.
In the case of West v. Louisiana, 194 U.S. 258, the Supreme Court affirmed a conviction of larceny in a case in which a deposition, taken before a committing magistrate in the presence of the accused, of a witness who had been cross-examined by counsel for the accused, the witness being permanently absent from the state at the time of the trial, was read in evidence at the trial. Mr. Justice Peckham, for the Court, said:
_ At common law, the right existed to read a deposition upon the trial of the defendant, if such deposition had been taken when the defendant was present and when the defendant's counsel had had an opportunity to cross-examine, upon proof being made to the satisfaction of the court that the witness was at the time of the trial dead, insane, too ill ever to be expected to attend the trial, or kept away by the connivance of the defendant. This much is conceded by counsel for plaintiffs in error, but they deny that the common law extended the right to so read a deposition upon proof merely of non-residence, permanent absence and inability to procure the evidence of the witness upon the trial, (p. 262)
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Coming to a decision of the question before us, we are of opinion that no Federal right of the plaintiffs in error was violated by admitting this deposition in evidence. Its admission was but a slight extension of the rule of the common law, even as contended for by counsel. The extension is not of such a fundamental character as to deprive the accused of due process of law. It is neither so unreasonable nor improper as to substantially affect the rights of an accused party or to fundamentally impair those general rights which are secured to him by the Fourteenth Amendment. The accused has, as held by the state court in such case, been once confronted with the witness and has had opportunity to cross-examine him, and it seems reasonable that when the State cannot procure the attendance of the witness at the trial, and he is a non-resident and is permanently beyond the jurisdiction of the State, that his deposition might be read equally as well as when his attendance could not be enforced because of death or of illness, or his evidence given by reason of insanity, (pp. 263-264)
In Christoffel v. United States, 200 F. 2d 734, the Court of Appeals of the District of Columbia, in its opinion delivered by Judge Fahy, held that the testimony given on a former trial by a witness since deceased, could be read in evidence in a subsequent trial. Judge Fahy said [200 F. 2d at 741-742]:
The admission of the duly authenticated transcript of this testimony was permissible as an exception to the hearsay rule. Mattom v. United States, 1895, 156 U.S. 237 at page 240 et seq" 15 S. Ct. 337, 338, 39 L. Ed. 409. In the case cited the claim was made that in a criminal trial the introduction of such previous testimony violated the constitutional right of the accused, protected by the Sixth Amendment, to "be confronted with the witnesses against him." The Court held:
"The substance of the constitutional protection is preserved to the prisoner in the advantage he has once had of seeing the witness face to face, and of subjecting him to the ordeal of a cross examination. " 156 U.S. at page 244,15 S. Ct. at page 340.
I think there is no evidence at all that the authors of the Constitution intended to abolish the, even at that time, numerous sensible exceptions to the hearsay rule, nor to forbid the creation of additional exceptions which fell within the same reason and purpose as the existing exceptions. In Snyder v. Massachusetts, 291 U.S. 97, at p. 107, Mr. Justice Cardozo, speaking for the Court, said:
Nor has the privilege of confrontation at any time been without recognized exceptions, as for instance dying declarations or documentary evidence. The exceptions are not even static but may be enlarged from time to time if there is no material departure from the reason of the general rule. cf. West v. Louisiana, 194 U.S. 258.
Boellhoff and Krinkevitch were just as unavailable as witnesses as if they had been dead, had become insane, or had left the country where the court was sitting. There is no possible reason why their kind of unavailability should be treated differently from the kinds which occur more frequently.
"What we have, then, is evidence which, because of the circumstances under which it had been given in the Court of Inquiry, was trustworthy, and was received by the court-martial. To receive it was an error of law on the part of the court-martial, because of the provision of article 60 that such evidence should be received in "cases not capital, nor extending to the dismissal of a commissioned or warrant officer." But Congress has expressly authorized its admission in all other court-martial cases.
Proper self-restraint on the part of a court, and proper respect for a law enacted by Congress and used for so long in the administration of military justice, persuade us that there has not been revealed to us something which has not been discovered by the Congress, the executive, or the judiciary in the 100 years since the enactment of the questioned statute.
As the Chief Judge shows in his opinion concurring in the dismissal of the plaintiff's petition, the plaintiff failed to assert, in the review of his case by the military authorities, the constitutional grounds which he here relies on. It may be that this failure would be a sufficient reason for the dismissal, by this court, of the plaintiff's petition, regardless of the merits of the constitutional issue. The parties, however, have not adequately briefed the question of the effect of the plaintiff's failure to raise the issue and we are not willing to base the decision upon that ground. Our conclusion is that no violation of the plaintiff's constitutional rights occurred in the court-martial proceedings.
The plaintiff's petition will be dismissed.
It is so ordered.
Laramoee, Judge, concurs.