William O. Douglas

“ Under Article 4 of the revised Articles of War an accused may now request that enlisted men be included on the court-martial that tries him. [5] There was no such provision of the law when petitioner was tried. [6] But the fact that he was tried by a court-martial composed wholly of officers does not raise a question which goes to jurisdiction. Petitioner can gain no support from the analogy of trial by jury in the civil courts. The right to trial by jury guaranteed by the Sixth Amendment is not applicable to trials by courts-martial or military commissions. ”

“ Insanity is a defense. [2] The pretrial procedure prescribed in Article 70 offers the accused an opportunity to present the defense of insanity. Petitioner had that opportunity. The Manual provides that the reviewing authority (here the Commanding General of the Division) 'will take appropriate action where it appears from the record or otherwise that the accused may have been insane' at the time of the crime, whether or not such question was raised at the trial. ”

“ There was evidence in the hearing before the District Court that petitioner may have been either insane or drunk at the time of the crime.
We put to one side the due process issue which respondent presses, for we think it plain from the law governing court-martial procedure that there must be afforded a defendant at some point of time an opportunity to tender the issue of insanity. It is only a denial of that opportunity which goes to the question of jurisdiction. ”