Brewster v. Swope, Warden

Herrie Brewster, a private in the Army, was tried by a general court-martial and convicted of murder in violation of the 92d Article of War. Sentence of death was imposed June 24, 1943. Under Article of War 46 the sentence could not be carried into execution “until the same shall have been approved by the officer appointing the court.” The commanding general who had convened the court, on June 29, 1943, made an order reciting that “the sentence is disapproved and a rehearing is ordered before another court to be hereafter designated”. On July 4, thereafter, Brewster was again found guilty of the same offense by another court. This time his sentence was dishonorable discharge, forfeiture of all pay and allowances due or to become due, and death.

This sentence was approved by the commanding general, who recommended commutation of the death sentence to life imprisonment, which recommendation the President followed. Thereafter the period of imprisonment was reduced to twenty-five years, and this sentence is now in effect.

Brewster then filed this petition for a writ of habeas corpus, asserting (1) that his second conviction and sentence was in violation of the Fifth Amendment’s…