authority approved the sentence. A board of review in a branch office of The Judge Advocate General in the Mediterranean Theater of Operations, constituted under Article of War 502, held the record of trial legally sufficient to support the sentence, which then was ordered executed. The sentence to confinement subsequently has been reduced by clemency action to twenty years at hard labor. Accused now presents an application for relief under Article of War 53.

The record of trial reveals that on the night of December 24, 1944 four members of the Polish Military Service, Nowicki, Liksza (the victim of the subsequent homicide), and two others were in Liksza's one room dwelling in Casamassima, Italy. The room had an entrance from the street, and its furnishings included among other things a chest of drawers placed against one wall several feet from the door. When the group entered the room at about 9:00 p. m. Liksza placed his pistol on top of the chest. They were joined by his Italian landlady, and the group sat around the table talking, eating, and singing.

Witnesses testified that shortly after 10:00 p. m. a violent knocking was heard at the door, Liksza opened the door, and a colored soldier attempted to step into the room. His entrance was opposed by Liksza, who held the door with one hand and pushed the colored soldier outside with the other. The prosecution's evidence was to the effect that Liksza then closed and bolted the door and again sat down; it was stated that his pistol remained on the chest during this occurrence and not within Farrell's apparent range of vision.

There was evidence that about five minutes later, following another loud knocking on the door, the little window in the door was broken open, and the same colored soldier who had been in the room previously thrust a pistol through the window and fired. Liksza, who upon first hearing the noise had assumed a position with his left side toward the door and a pistol in his right hand, pointed down, was struck in the left side by a bullet, fell to the floor and within approximately twelve hours died from the wound.

Nowicki seized Liksza's pistol and dashed out the door in pursuit. He asserted that after he had gone about ten paces, he was seized by a colored soldier who struggled briefly with him attempting to obtain the pistol. The former escaped amid a fusillade of shots fired at him by Nowicki.

Between 11:00 and 11:30 p. m. accused was seen in the recreation hall of his unit with a hole in his blood-stained trousers, limping, and asserting that he had been shot. There was evidence that he gave a fellow soldier a weapon for safe-keeping.

About fifteen minutes later Farrell was discovered by an Army medical officer to have sustained a gun shot wound in the

buttock. The record contains evidence that he explained the presence of the wound by saying that after talking with a strange soldier, believed to be Polish, whose conversation he could not understand, accused "turned around and walked away from him and at that time the soldier shot him."

In a voluntary pretrial statement, admitted in evidence, applicant admitted his presence at the scene of the shooting of the victim. His statement of the facts of the case was in substance similar to those outlined above, so far as they fell within his knowledge; however, he stated that the Polish soldier had a gun in his hand when he pushed accused out the door; he added that he then went to the corner of the building, readied his pistol and returned to the door, that he looked through the little window, saw the Polish soldier standing next to the buffet with a pistol in his hand held at about hip level, and fired because he feared the soldier would shoot.

Accused took the stand and testified in substance as follows: that at the time of the incident he was carrying a pistol because he might want to shoot it in celebration of Christmas Eve; that he knew the landlady who lived in the room he had entered,' that being evicted from the room that evening made him "very mad" and resentful; that he loaded his weapon and planned to knock on the door and ask why he was pushed out of the house, but when he saw the Polish soldier holding a "gun" he was frightened and excited and shot without thinking; that he had no malice toward his victim, and that he did not plan beforehand to kill him.

It thus becomes manifest that the admissions of applicant, both pre-trial and from the witness stand supplemented by the other evidence at the trial compellingly established his guilt.

He now contends that the court was without jurisdiction for the reason that the law member thereof was not a member of the Judge Advocate General's Department, referring to the requirements of Article of War 8; he further contends that he acted in self-defense, that there were "gross irregularities throughout the trial that constituted violation of due process of law," and that the findings of guilty were contrary to the evidence.

No new evidence is submitted with the petition, nor are the alleged irregularities at the trial particularized.

The record of trial discloses that the law member was a member of the Air Corps, who, as shown by records of the Department of the Army, was a lawyer and prior to trial had substantial experience in the service as a legal officer. The record of trial indicates that he ruled intelligently on questions of law and performed the duties of law member competently. There is nothing

1 The landlady denied prior acquaintance with Farrell.

to indicate that his selection as law member was not a sound and reasonable exercise by the officer appointing the court of his discretion in the matter, or that there was a member of the Judge Advocate General's Department "available for the purpose" of service as law member (Hiatt v. Brown, 339 U. S. 103 (1950); AW 8; MCM, 1928, par. 4e).

No issue of self-defense was presented by the evidence even were Farrell's assertion as to the position of Liksza's pistol to be accepted as true. Applicant was the original aggressor throughout and as such he may not assert self-defense as justification for the homicide (Laney v. U. S., 294 Fed. 412, 415 hn 6, (App. D. C., 1923); State v. Sedig, 16 N. W. 2d, 247, 250, hn 2, 235 Iowa 609; Gibson v. State, 202 S. W. 2d, 236, 237, hn 2 (50 Tex. Cr. R. 40); Pair v. State, 31 So 2d, 107, 112, hn 2, (33 Ala. App. 108)).

The entire proceedings of the court-martial trial have been studied and they indicate that the procedures provided by military law were applied in a fundamentally fair way. This, for those subject to that law, constitutes due process of law (Reilly v. Pescor, 156 F. 2d, 632, 635, hn 8 (C. C. A. 8th, 1946); U. S. ex rel Innes v. Hiatt, 141 F. 2d. 664, 666, hn 6, (C. C. A. 3d 1944)). The court had jurisdiction over the accused and over the offense of which he was convicted. There was no error injuriously affecting his substantial rights, and the evidence is legally sufficient to support the findings. The sentence is legal and not excessive.

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Good cause for the granting of relief under Article of War 53 does not appear; accordingly, the petition will be denied.

FRANKLIN P. SHAW

Major General, USA

Acting The Judge Advocate General

JAGY CM 333202

MEMORANDUM OPINION

16 May 1950

SUBJECT: Application by James P. Booker for Relief under Article of War 53 in the Case of Master Sergeant James P. Booker, RA 6298372, et al (CM 333202)

Applicant was tried jointly with Privates First Class Christian, Tollette, and Burnside by a general court-martial at Kobe Base, Japan, on August 24, 25, and 26, 1948. All were convicted. of assault with a dangerous weapon with intent to do bodily

harm, in violation of Article of War 93, and larceny of government property valued at more than $50-furnished and intended for the military service, in violation of Article of War 94. Their sentences were dishonorable discharge, total forfeitures, and confinement at hard labor for ten years. The reviewing authority approved the sentences, suspended execution of the dishonorable discharges until accused's release from confinement, and designated a disciplinary barracks as the place of confinement. A board of review, constituted under Article of War 5012, with concurrence of The Judge Advocate General, held the record of trial legally sufficient as to Christian, Tollette, and Burnside, but as to Booker legally sufficient to support only the findings of guilty of larceny, in violation of Article of War 94, and only so much of the sentence as provided for dishonorable discharge, total forfeitures, and confinement at hard labor for five years. The sentences, including Booker's as thus modified, were thereafter duly ordered executed. Booker now presents an application for relief under Article of War 53.

There was compelling evidence introduced at the trial to establish actual participation by Private First Class Christian, a member of the organization in which applicant was a first sergeant, together with Privates First Class Tollette and Burnside of the 24th Infantry Regiment, in the theft as charged, of a considerable quantity of government clothing, valued at more than three thousand seven hundred dollars. The goods had been loaded out of United States Government Warehouse L, on Pier 7, in Kobe, Japan, at about 1:00 a.m., July 13, 1948, into a government truck driven by Tollette, then transported, at times under fire from a pursuing Criminal Investigation Division agent, to a burned out area for illegal disposition by Japanese. At this last location Japanese participants were intercepted by Japanese police, and a portion of the stolen articles recovered. During the pursuit Burnside's fire slightly wounded a Government agent. The three privates first class confessed their guilt in pre-trial statements but applicant made no incriminating admissions; at the trial all four exercised their lawful prerogative to stand silent as to the case on its merits.

With respect to the proof of applicant's culpable connection with the larceny, the following evidence adduced at the trial is noted:

Booker's Japanese "girl friend", Emiko or Kubo, testified as part of the prosecution's case, that the night of July 12th, applicant, Christian, and two Japanese were at her home (also referred to as Booker's). She says that at about 8:00 p. m. the Japanese asked her if she knew anyone who "could get them a truck because they wanted to transport some goods". She as

serts that she repeated this to applicant, whom she quotes as replying that the hour was so late that he was not certain whether he could "fix it", but would inquire of someone and "see if they could not make it today", enjoining her not to reveal this to the Japanese until arrangements were made. Emiko adds that Booker further replied that he could not get the truck himself but "would speak to someone".

Private Davis testified at the call of the prosecution that on Monday, July 12th (later modified to either the 11th or 12th depending upon the terminus of his restriction period), in the presence of Booker, Christian, Emiko, and others he heard Monko, a Japanese, tell applicant that Monko's man "who works on Pier 7 had been putting out stuff at night on this pier and that the fellows from the 24th Infantry, after they had posted the twelve o'clock relief, would take the stuff off the pier which is put out on the pier". Davis' testimony continues:

* * *

"[Monko] asked Booker who was in the 24th Infantry, who drove a truck, and if so to get the truck, and so Sergeant Booker told Monko that he didn't know anybody. Then Booker asked Christian did he know anyone who drove a truck in the 24th Infantry, and Christian replied that he knew a boy, on the heavy side, a boy called 'Fats', who drove the truck and would drive the truck so Booker tells Christian, 'No, I have to go back and make bed check at 10:30' and for Christian to accompany him back to camp and get this boy of the 24th Infantry, the soldier, and take him to the office after bed-check. He may want to talk to him; and he tells Emiko to get a taxi, so Monko and this Hyashida and a couple other Japanese fellows to wait down at Pier 7 until a truck left the pier, and after the truck left the pier that Monko, Emiko and Hyashida were to follow in a taxi-cab, and Emiko was supposed to count the cargo which was on the truck and she was supposed to pick up the money the next morning."

Davis added the following:

"Q. Did you hear what kind of a truck was mentioned?

A. A guard truck; a six by.

"Q. Who made that statement?

A. Sergeant Booker.

"Q. What time was this?

A. Well, that was between 9:30 and 10:00 o'clock because I left right after 10:00 o'clock."

Emiko asserted that Davis was at her home on July 11th but not on the 12th. Two sergeants of Davis' and applicant's unit (not the 24th Infantry), swore that Davis was not a credible witness. Other testimony was introduced in an effort to attack Davis' recollection or credibility.