A Crucial Case of Murder

Last May, four air police walked into the Jones & Laughlin mill in Pittsburgh and asked for Bob Toth, a young (21) steelworker. When they found him at work, the APs handcuffed him, took him to the Greater Pittsburgh Airport, where he was ordered aboard a military plane. Five days later, Toth, who had gotten his honorable discharge five months earlier, was in a guardhouse in Taegu, Korea, awaiting trial by court-martial on a charge of murder.

At Washington's National Airport last week, Bob Toth. a wan and bleary-eyed traveler, stepped from a commercial airliner into the arms of his tearful mother and sister. The murder charge still hung over him, and he remained in Air Force custody, but he had won the first round of the toughest tug of war in years between civilian and military authorities.

Order to Shoot. The case began at an Air Force bomb dump in Taegu in September 1952. One night. Toth was on duty as sergeant of the guard. As he told the story later: "A gook who was drunk came into the area. The guard was on duty with a dog, and he hollered twice to the gook to halt, and when the gook didn't stop, he tried to get the dog to stop him, [but] the dog wouldn't attack. Then the guard fired two shots. These shots woke me, and I went to the area in a Government jeep ... I tried to get the dog to attack the gook, and the dog wouldn't attack. The guard and I, together, put the gook in the jeep. After we got the gook in the jeep, the gook, who was in the back, went for my pistol. I knocked hell out of him with the back of my hand, hit him behind the ear. I took the gook to the office and reported to the officer of the guard. I told the officer what had happened, and he said take him out and shoot him."

The unfortunate "gook." a South Korean civilian named Bang Soon Kil, was taken to a secluded revetment, where the guard killed him with a single shot. "I didn't want anything to do with it," Toth claimed, "so I got the hell out of there. When I was back at the guardhouse. I heard a shot, got into the jeep and went back to the bomb dump. When I got there, I saw the gook lying on the ground."

Last week an Air Force court-martial in Korea sentenced the officer of the guard, Lieut. George Schreiber, 25, to life imprisonment. At the same time, the life sentence of Airman Thomas L. Kinder, 21, the guard who fired the fatal shot, was reduced to two years. No one questioned the sentences, or the military's right to try Kinder and Schreiber. who are still in the Air Force. But the case of Bob Toth, a civilian, is a different matter.

Order to Return. While Toth was being yanked back to Korea, his family hired Pittsburgh Attorney Anthony McGrath, who sued for a writ of habeas corpus. The Air Force, McGrath insisted, had no right to take Toth into custody. He had been arrested without a warrant, moreover, and spirited out of the country with no hearing before a competent civilian authority. The Air Force claimed the authority of Article 3a of the Uniform Code of Military Justice, which states that former servicemen who committed major crimes while in military service "shall not be relieved from amenability to trial by courts-martial by reason of the termination of said status." Lawyer McGrath (who died later of a heart attack) questioned the constitutionality of Article 3a.

Federal Judge Alexander Holtzoff, who heard the case in Washington, acknowledged the military's right to try a civilian for his military crimes, but questioned its authority to arrest a civilian, much less abduct him to a foreign country. Then Judge Holtzoff ruled that a writ of habeas corpus should be issued. The Air Force reluctantly brought its prisoner home for a court hearing scheduled for next week.

The case poses a crucial point. If the Uniform Code is constitutional, it could conceivably mean that in the future no ex-serviceman will be wholly beyond the reach of military justice. On the other hand, if Toth wins his freedom from the Air Force, he will probably never stand trial, since the case is clearly outside the jurisdiction of any civil court. For Toth, a long series of courtroom struggles and appeals lies ahead, and the end could bring him anything from scot-freedom to death before a firing squad.

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