Viewing page 51 of 124

This transcription has been completed. Contact us with corrections.

Disagrees on Procedure.

"I agree fully with Col. Moreland when he said there should be an investigation before charges are made," Representative Reid stated. "The President in this manual has said exactly how such investigations should be conducted. If the rules in this court martial manual can be set aside whenever one so desires they ought to put a star in here with a foot note reading, "This doesn't mean anything, however'. Everything a court-martial should do is covered here. There are no exceptions noted whatever." 
   
At this juncture Representative Reid asked if the members of the court had been furnished with the official report of the investigation made prior to Mitchell's arrest. Col. Moreland said that they had not, pointing out that the rules provide that the judges shall be supplied only with the formal charges against the accused, Representative Reid came back with the statement that his client had been served with this report and that he wished to incorporate it in the proceedings or else have Col. Mitchell take the stand and testify regarding the investigation to which he was subjected. 
   
There was a brief discussion between counsel as to just how this should be done after the trial judge advocate had announced he had no objections to the report being put in the record.
   
When the court returned from its recess the question of responsibility for failure to carry out the requirement of court-martial procedure was put squarely up to the trial judge advocate, Col. Moreland. With blunt candor, Col. Winship, the law member of the court, asked: "I should like to know from the judge advocate what he has to say about these other requirements of the articles of war?" 
   
"May I, in turn, ask what 'other requirements' the law member means?" Col. Moreland replied, flushing deeply.
   
"I'll read the Articles of War to the trial judge advocate and point them out as we go along," Col. Winship answered.
   
Col. Winship then read the Articles of War and at the end pointed out to Col. Moreland that in admitting that Col. Nugent had conducted the only investigation preliminary to the summoning of a general court-martial for the trial of Col. Mitchell, he had virtually admitted at the same time that the flying officer had not been given the full benefit and opportunities to explain his action, as is provided by the Articles of War.

Admits Correctness of Issue.

"We want either proof that these things were carried out or your admission that they were not carried out," Col. Winship continued. 
   
"I concede," Col. Moreland explained, "that the commanding officer of the accused did not make an investigation. Nor did he recommend a court-martial: naturally he did not when he had not even made an investigation."
   
"Then the only thing before this court is Nugent's report and Davis' telegrams," Interjected Mr. Reid for Col. Mitchell. The Davis he referred to meant the Secretary of War. 
   
"There is nowhere in your record any instance where a commanding officer recommended this court-martial."
   
"No sir, no commanding officer either investigated this case or recommended a court-martial," replied Moreland.
   
"Then who ordered Nugent to investigate?" the member of the court asked.
   
"The Secretary of War, acting for the President of the United States." Col. Moreland said. "Neither Gen. Hines, Col. Mitchell's immediate commanding officer, nor Gen. Rockenbach made an investigation of this case."
   
It was Gen. Rockenbach, however, who signed the papers calling the court-martial, according to testimony produced earlier in the day.
   
Immediately after receiving the sensational testimony Gen. Hawze announced that the court would go into closed session to consider the defense's motion to quash the entire proceedings.
   
The courtroom was left in an uproar of excitement. For the first time since the trial began the crowd began talking excitedly and several times laughed audibly at the admission of the trial judge advocate, particularly when he showed that all of the proceedings leading up to the trial had been instituted by the War Department.

COOLIDGE'S ACTION AIDS PROSECUTION

Mitchell Trial Called by President and Is Legal, Winship Holds.

The name of President Coolidge not only failed to save Col. Mitchell's plea to jurisdiction on the ground of free speech yesterday morning when the military court-martial trying him for violation fo the ninety-sixth article of war overruled the plea, but the connection of the President with the preliminary investigation of the aviator's case brought victory to the prosecution again in the late afternoon. 
   
It had been vigorously contended by Col. Mitchell's counsel, Representative Reid, that the rules for procedure leading up to a court-martial had been violated in that neither the colonel's commanding officer in Texas nor the commanding officer of the district of Washington had ordered the case investigated and called a court-martial. Representative Reid drew from Col. Sherman Moreland, trial judge advocate, the admission that those provisions of the regulations had been violated and it was on this point he had moved the case be stricken out.

Coolidge Has Power.

However, the court decided, with the aid of its law member, Col. Blanton Winship, that President Coolidge has power to call a court-martial at any time and that President Coolidge is Col. Mitchell's commanding officer. 

Representative Reid then moved that the case be stricken out because the specifications showed no violation of the ninety-sixth article of war. The opinion of the law member that the motion be overruled again was sustained and Mr. Reid requested a bill of particulars "because the charges are too vague for the defense to build a case."

Col. Moreland replied that to frame this bill would require a careful study of 53 closely-written typewritten pages and suggested he be given time overnight to perform the heavy task, "which should be done in fairness to the accused."

Called Abnormal Trial.

Col. Moreland admitted that the investigation had been made and the charges preferred by direction of the Secretary of War, and that the court had been ordered by him by direction of President Coolidge. 
   
"This is a presidential court," Col. Moreland said in answer to questions by Mr. Reid. "There is no requirement that the regulations shall be carried out explicitly, so long as the substance is there."
   
"I hate to think this is a case where necessity knows no law," Mr. Reid exclaimed adding that "this is an abnormal case, indeed."
   
Col. Winship held, and the court agreed, that since the court-martial regulations were made by the President of the United States, he could, as commander in chief of the Army and Navy, direct Secretary Davis to have the charges against Col. Mitchell investigated, and order a trial, as had been done. In the same way, Col. Winship decided, the War Secretary had become Col. Mitchell's commanding officer at all intents and purposes of the court-martial manual. 

Wash Star 10-30-25
[[Image]]  
KEEPS A RECORD OF THE EVIDENCE. Alexander H. Galt, brother-in-law of the late President Woodrow Wilson, who is the official court reporter of the Mitchell trial. Photograph snapped during yesterday's proceedings at the Emory Building. National Photo.

D.C., FRIDAY, OCTOBER 30, 1925.
[[image]]
AT THE MITCHELL COURT-MARTIAL, Mrs. William Mitchell, wife of the defendant, and Col. Blanton Winship, law member of the Army court, talking outside the Emory building after court had adjourned yesterday. National Photo.