Opinion
No. 3976.
January 4, 1950.
Hal C. Davis, Topeka, Kan., for appellant.
Eugene W. Davis, Assistant U.S. Attorney, Topeka, Kan., Col. Reginald C. Miller and Major Oilver R. Wells, Washington, D.C. (Lester Luther, United States Attorney, Topeka, Kan., on the brief), for Appellee.
Before PHILLIPS, Chief Judge, and BRATTON, HUXMAN, MURRAH, and PICKETT, Circuit Judges.
This is a companion case to McMahan v. Hunter, 10 Cir., 179 F.2d 661. The cases were consolidated and argued together.
In this case, Simmons, while serving in the armed forces of the United States in Germany, was charged with violation of Article of War 92, 10 U.S.C.A. § 1564. He was tried and convicted by a court-martial and is now serving his sentence in the United States Federal Penitentiary, Leavenworth, Kansas. He, likewise, has appealed from the judgment of the United States District Court for the District of Kansas denying him any relief.
The questions of law in this case are identical with those of McMahan v. Hunter, and the decision herein is controlled by what we have said in the McMahan case. On the authority of that case, the judgment appealed from is affirmed without prejudice to appellant's rights to file a new application for a writ of habeas corpus, after having first complied with the requirements of Article of War 53, 10 U.S.C.A. § 1525.