Toth v. Quarles 1955

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Toth v. Quarles 1955

Petitioner: Audrey M. Toth

Respondent: Donald A. Quarles, Secretary of the U.S. Air Force

Petitioner's Claim: That Congress violated the Constitution by allowing the military to hold court-martials for civilians who used to be military personnel.

Chief Lawyer for Petitioner: William A. Kehoe, Jr.

Chief Lawyer for Respondent: Simon E. Sobeloff, U.S. Solicitor General

Justices for the Court: Hugo Lafayette Black (writing for the Court), Tom C. Clark, William O. Douglas, Felix Frankfurter, John Marshall Harlan II, Earl Warren

Justices Dissenting: Harold Burton, Sherman Minton, Stanley Forman Reed

Date of Decision: November 7, 1955

Decision: The Supreme Court ordered the Air Force to release Robert Toth from custody.

Significance: With Toth, the Court said the military does not have power to try civilians for military crimes.

Robert Toth was an enlisted airman in the U.S. Air Force during the Korean War. On 27 September 1952, Toth was on guard duty with Airman Thomas Kinder at an airbase in South Korea. That day the airmen found a Korean civilian, Bang Soon Kil, who appeared to be drunk. The airmen took Bang Soon into custody and drove him to base headquarters in a jeep.

On the way to headquarters, Bang Soon grabbed at Toth's arm. Toth allegedly stopped the jeep and pistol-whipped Bang Soon. When the airmen arrived at headquarters, their commanding officer, Lieutenant George Schreiber, ordered them to take Bang Soon away and shoot him.

By the time military authorities discovered the murder, Toth had been honorably discharged from service. Schreiber and Kinder, however, were still in the Air Force. Both men faced a court-martial, which is a military trial for violation of the Uniform Code of Military Justice. The court-martial found Schreiber guilty and sentenced him to life in prison, but the Air Force reduced the sentence to five years in prison, forfeiture of pay, and a dishonorable discharge. The court-martial also gave Kinder a life sentence, but the Air Force reduced it to two years in prison and a dishonorable discharge.

Civil Court-Martial?

After being honorably discharged from the Air Force, Toth returned to his home in Pittsburgh, Pennsylvania, and got a job in a steel plant. He had been there five months when Air Force police arrived at the plant to arrest him for Bang Soon's murder. The Air Force put Toth on an airplane for South Korea to stand trial in a military court-martial.

Civilian courts had no power to try servicemen for crimes committed in the military. Article 3(a) of the Uniform Code allowed the military to court-martial a former serviceman for military crimes that were punishable by at least five years in prison. If Toth was guilty, a court-martial was the only way to bring him to justice.

After the Air Force took Toth to South Korea, his sister, Audrey M. Toth, filed for a writ of habeas corpus in federal court in the District of Columbia. A writ of habeas corpus is an order to release a prisoner who is in custody in violation of the Constitution. Toth's sister said the Uniform Code violated the Constitution by allowing civilians to be court-martialed by the military. It allowed Toth to be tried without the benefits of a grand jury accusation, a neutral judge, and a jury of his peers.

The federal court granted the writ and ordered the Air Force to release Toth. It said the Air Force had no power to take Toth to South Korea for trial without first holding a hearing. The court of appeals, however, reversed. It said the power to hold the court-martial gave the Air Force the power to transport Toth to South Korea for trial. Faced with a court-martial in South Korea, Toth took the case to the U.S. Supreme Court.

Court-Martial Lacks Power

With a 6–3 decision, the Supreme Court ruled in favor of Toth. Justice Hugo Lafayette Black wrote the Court's opinion. Black said the Constitution gave Congress the power to make rules and regulations for the land and naval forces. Those rules, however, can apply only to people who are in the military forces. Once a serviceman leaves the military and becomes a regular citizen, the military has no power to court-martial him.

Black said allowing the military to court-martial civilians would deprive them of constitutional rights. Article III of the Constitution creates a judicial system run by independent, neutral judges. The Fifth Amendment gives citizens the right to be charged by a grand jury before standing trial for a crime. The Sixth Amendment says criminal trials must be jury trials so that citizens will be judged by their peers in the community. Military court-martials do not use independent judges, grand juries, or jury trials. Letting the military court-martial civilians would deprive them of those rights.

The government argued that the Court's decision would allow military criminals to escape justice. The Court rejected this argument. It said Congress could enact legislation to allow civilian courts to try civilians for crimes committed in the military. The military, however, was not allowed to make up for the lack of such legislation by hauling regular citizens into military court.

Necessary and Proper

Three justices dissented, which means they disagreed with the Court's decision. Justice Stanley Forman Reed wrote a dissenting opinion. Reed did not agree that the military lacked power to try civilians for crimes committed in the military. He thought it was unfair for Toth to escape a trial just because he got out of the Air Force before it discovered the murder.

The Necessary and Proper Clause of the Constitution gives Congress the power to do anything reasonable to carry out its specific powers. One of those specific powers is the authority to make rules and regulations for the military forces. Justice Reed thought it was reasonable for Congress to promote discipline by allowing the armed forces to court-martial former servicemen for military crimes.


Nobody was punished seriously for Bang Soon Kil's murder. Air Force Secretary Harold E. Talbott dismissed Schreiber from the service after Schreiber had served only twenty months of his five year sentence. Talbott suspended Kinder's dishonorable discharge, allowing Kinder to return to the service. Toth, who insisted that he was not present when Bang Soon was killed, escaped trial as a result of the Supreme Court's decision.


P fc. Barry Winchell was a soldier in the U.S. Army at Fort Campbell on the Kentucky-Tennessee border. Winchell also was homosexual. In the early morning hours of 5 July 1999, fellow soldier Calvin N. Glover beat Winchell to death with a baseball bat as Winchell lay asleep in his barracks. One night earlier, Winchell had beaten Glover in a fist fight that Glover started. When friends teased that he had been beaten by a "fag," Glover vowed to get Winchell back. The murder followed months of anti-gay harassment, which Winchell reported to his superiors to no avail. Gay rights activists called the murder a hate crime. Winchell's parents considered suing the Army for failing to protect their son.

Suggestions for further reading

Eilperin, Juliet. "Parents of Slain GI Consider Suing Army." Washington Post, January 10, 2000.

Encyclopedia Americana, 1993 ed., s.v. "Court-martial."

Pressley, Sue Anne. "Hate May Have Triggered Fatal Barracks Beating." Washington Post, August 11, 1999.

Sherrill, Robert. Military Justice is to Justice as Military Music is to Music. New York: Harper & Row, 1970.

"Soldier's Sentence Allows Parole." Washington Post, December 10, 1999.

World Book Encyclopedia, 2000 ed., s.v. "Court-martial."