opinion: WRUBLEWSKI v. McINERNEY, Commanding Officer of United States Naval Receiving Station, et al.
  No. 11682.
  Circuit Court of Appeals, Ninth Circuit.
  Feb. 25, 1948.
  Edwin S. Wilson, of San Francisco Cal., for appellant.
  Frank J. Hennessy, U. S. Atty., and Joseph Karesh, Asst. U. S. Atty., both of San Francisco, Cal., for appellee.
  Before GARRECHT, HEALY, and ORR, Circuit Judges.
  HEALY, Circuit Judge.
  This appeal is from a judgment dismissing for insufficiency a petition for release on habeas corpus. The case presents a claim of double jeopardy growing out of two successive trials of appellant before a. naval general court-martial.
  So far as material to the inquiry, the petition shows the following facts. Petitioner, who is or was an ensign in the Navy, was tried in 1944 before a naval court-martial on charges of murder and assault with intent to commit murder at a naval air station in the Territory of Hawaii.. The murder charge was for the felonious, killing with malice aforethought of an officer named Travis. The charge of assault' with intent to commit murder contained three specifications, the first alleging an assault with a revolver with intent to kill Travis, the second and third like assaults, with intent to kill two other officers, Nason and Osborne. The several charges appear to have involved a single incident in the course of which Travis was shot to death. Petitioner was found guilty of murder and was acquitted of the other charges.
  • Subsequently it was determined by the-Judge Advocate General’s Office that the-conviction was void for lack of jurisdiction in the court to try the murder charge, the offense having been committed within the territorial limits of the United States. New charges for the slaying of Travis were subsequently preferred before another court-martial, namely, voluntary manslaughter and involuntary manslaughter. Upon the trial petitioner interposed a plea in bar on the ground that he had once been acquitted by a duly constituted court of assault with intent to murder Travis. This crime, so the plea asserted, was a lesser offense included in manslaughter, hence acquittal of the lesser crime barred a subsequent prosecution for the greater. The plea was denied and on the trial petitioner was convicted of voluntary manslaughter and sentenced to serve a term of five years. Because of the alleged former jeopardy he claims that the naval court lacked jurisdiction to try him for manslaughter, hence he is entitled to the writ, cf. Waite v. Overlade, 7 Cir., 164 F.2d 722, and cases cited.
  The district court thought it unnecessary to decide the issue of double jeopardy since it was of opinion that the specific guaranties of the Fifth Amendment may not be invoked in cases arising in the land or naval forces of the United States, citing Ex parte Quirin, 317 U.S. 1, 43, 63 S.Ct. 2, 87 L.Ed. 3; Ex parte Milligan, 4 Wall. 2, 123, 71 U.S. 2, 123, 18 L.Ed. 281, and a few other cases. Contrariwise, we assume for the purpose of decision that the petitioner is entitled to the protection of the Amendment’s guaranty against being twice put in jeopardy for the same offense. On that assumption we consider whether he has in truth been exposed to double jeopardy.
  It is not now seriously urged, as it appears to have been before the naval court, that an assault with intent to commit murder is an ingredient of manslaughter. Such contention could not successfully be maintained. • At common law as by the. statutes generally, including the federal statute, Criminal Code § 274, 18 U.S.C.A. § 453, manslaughter is defined as the unlawful killing of a human being without malice. It is immaterial that an identical factual situation was’ involved in both cases. Gavieres v. United States, 220 U.S. 338, 31 S.Ct. 421, 55 L.Ed. 489.
  Petitioner’s argument here is considerably more complex. It proceeds substantially on the following premise. Simple assault is an element common both to manslaughter and assault with intent to commit murder. On the original trial, while the court was without jurisdiction of the murder charge, it did have jurisdiction of the charge of assault with intent to commit murder, and of this charge petitioner was acquitted. The court could have reduced the more serious offense of which it had jurisdiction to that of simple assault but did not do so, hence petitioner was necessarily acquitted of simple assault also. The identical simple assault of which he was thus acquitted was retried to his prejudice when he was tried for manslaughter.
  The argument sounds plausible but becomes wholly unconvincing when one recalls the realities of the situation. Since the naval court convicted petitioner of the ■murder of Travis it necessarily determined the fact to be that he assaulted his victim with intent to murder him. Its acquittal of ■ the accused of the latter charge was so at war with its principal verdict that the acquittal can not possibly be regarded as anything other than a means of disposing of a ■charge which the completed murder had swallowed up and so rendered superfluous.
  The constitutional guaranty against ■double jeopardy concerns itself with matters of substance, not with ingeniously assembled shadows. Petitioner has nothing of substance to complain of. He would appear to have emerged from this chapter of errors in a more favorable position than he would have been in had the errors not been ‘Committed.
  Affirmed.
  Consult Articles for the Government of the Navy, 34 U.S.C.A. § 1200, Article 6. This provides: “If any person belonging to any public vessel of the United States commits the crime of murder without the territorial jurisdiction thereof, he may be tried by court-martial and punished with death.”
  The judgment was subsequently confirmed by the Judge Advocate Gen'eral.
  None of the authorities to which our .attention has been called directly supports the view taken below. In Ex parte Milligan, supra, the court said that the ■framers of the Constitution meant to limit the right to jury trial, as guaranteed in the Sixth Amendment, to those persons who, under the Fifth, could be held to answer for infamous crime only ,on presentment or indictment of a grand jury. In Ex parte Quirin, supra, the court rejected the contention, predicated on the Fifth and Sixth Amendments, that those charged with offenses against the laws of war must be proceeded against by indictment of a grand jury and are entitled to trial by jury. For other cases bearing more or less on the applicability of the Fifth Amendment in military or naval trials ef. United States v. Hiatt, 3 Cir., 141 F.2d 664; Waite v. Overlade, 7 Cir., 164 F.2d 722.
  The naval definition of manslaughter is taken directly from this provision of the Criminal Code. See § 119, Ch. II, p. 113, Naval Courts and Boards (1937).
  Appellant’s main reliance is on Grafton v. United States, 206 U.S. 333, 27 S.Ct. 749, 51 L.Ed. 1084, 11 Ann.Cas. 640.
instruction: What follows is an opinion from a United States Court of Appeals.
  Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
  In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
  To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
  United States of America,
  Plaintiff, Appellant
  v
  International Brotherhood of Widget Workers,AFL-CIO
  Defendant, Appellee.
  International Brotherhood of Widget Workers,AFL-CIO
  Defendants, Cross-appellants
  v
  United States of America.
  Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
  of the Board
  Plaintiff, Appellants,
  v
  United States of America,
  Defendant, Appellee.
  This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
  Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
  If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
  Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.