JAGY CM 317767

23 June 1950

MEMORANDUM OPINION

SUBJECT: Application for Relief under Article of War 53 in the Case of Corporal Henry H. Ermann, 42176796 (CM 317767)

Petitioner was tried by general court-martial at Berlin, Germany, on September 24, 1946 and found guilty of larceny, in violation of Article of War 93. He was sentenced to reduction to the grade of private, dishonorable discharge, total forfeitures, and confinement at hard labor for three years. The reviewing authority approved only so much of the finding of guilty with respect to the articles stolen and their value as involved larceny of the silverware alleged of a value of $8.00, and approved only so much of the sentence as provided for dishonorable discharge, total forfeitures, and confinement at hard labor for six months, but suspended execution of the dishonorable discharge until accused's release from confinement. The record of trial was examined pursuant to Article of War 50%, and found legally sufficient to support the sentence. The sentence as modified has been executed.

Accused, through his attorney, Theodore H. Wahrburg, Esquire, now presents an application under Article of War 53 specifically requesting vacation of sentence, restoration of all rights, privileges, and property, and substitution of an administrative discharge. Applicant contends that he was denied due process of law urging that his confession was improperly admitted in evidence because, he asserts, it was obtained by promise of immunity, and that the identification and ownership of the property allegedly stolen were not adequately proved.

Submitted in support of the application are affidavits dated in December, 1949 of Anthony A. Schepsis, Joseph McLain Stewart, and Richard R. Scherer.

The affidavit of Captain Schepsis states in substance that about March 4, 1946, when he was accused's deputy commanding officer, he was requested by Criminal Investigation Division Agent Strauch to use his influence to have Ermann voluntarily return any property he might have taken during the "Tally Ho" raid, that Agent Strauch promised him, in behalf of accused, that no charges of misconduct would be filed against the latter if he cooperated in the matter, that applicant was so advised and, as a result thereof, arranged a meeting with Strauch voluntarily surrendering the articles he had taken as well as assisting in

having other soldiers involved return articles, that accused told him that Strauch had reiterated the alleged promise of immunity to him and informed Ermann that he had nothing to fear, that affiant was not available at accused's trial, that accused is of good character and personality. No request for his evidence or for a continuance was made at the trial.

The affidavit of Major Stewart relates, in brief, that he was petitioner's commanding officer but was not cognizant of the investigation of or charges against accused until July 1, 1946, because of a special assignment, that the staff judge advocate gave him reason to believe that the period of house arrest, (asserted as from March 4 to September 24, 1946), would be considered by the court in mitigation, and that Ermann is of good character. Examination of the original charge sheet discloses that the above affiant is apparently the person who signed and swore to the charges against accused on June 14, 1946. No reference to any conversation with the staff judge advocate is found in the latter's review or any other allied papers.

The affidavit of Second Lieutenant Scherer confirms others as to the good character of accused.

In the record of trial evidence is found that during the evening of March 2, 1946 in Berlin, Germany, the apartment of Erna Duering was raided by a party consisting of five German detectives, five German policemen, and four Americans, of whom three were military police and the fourth, the applicant, was a member of a Counter Intelligence Corps unit. Among other things, the raiding party uncovered gold, diamonds, jewelry, men's stockings, and cigarettes. A trunk, containing silverware, the property of Hansi-Marie Clemens in the custody of Mrs. Duering, was removed without permission. Items of silverware introduced into evidence at the trial were shown to have been similar in appearance to items of silverware which had been in the trunk. Certain of this silverware was identified by a Criminal Investigation Division agent as property recovered from the possession of accused. This same silverware, with other goods, was identified in his presence by the respective owners, and the agent identified the property at the trial. It was in evidence that counter intelligence agents were not authorized to seize property in such a raid as the instant one unless it was contraband. They were not told to pick up silver items. The same agent identified a pre-trial statement made by Ermann in which the latter admitted the taking and subsequent surrender to the agent of items of silverware. He testified that he did not give accused any promise of immunity.

Error, if it was committed, in receiving the pre-trial statement of the accused to the Criminal Investigation Division agent,

can hardly be considered as materially prejudicing the substantial rights of the accused, since the facts in that respect were amply proved aliunde the admission by compelling evidence.'

Circumstantial evidence may be employed to prove identity and ownership of goods alleged to have been stolen' and the fact that relevant evidence is discovered through information furnished by an involuntary confession is not a ground for excluding such evidence. From proof of unexplained possession of recently stolen property, a presumption of guilt may arise. There was sufficient substantial evidence from which the court might properly conclude that Clemens was the owner of the part of the silverware mentioned in the findings, as limited by the action of the reviewing authority." It is noted that as to several pieces of silverware, this action enlarged by a few minor items the finding of the court. However, as to this trivial error, the principal of de minimis non curat lex is applicable.

There has been no showing that anyone with authority to do so granted immunity from prosecution to Ermann. The government is not bound by unauthorized acts of its employees under such circumstances."

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

SUBJECT: Application for Relief under Article of War 53 in the Case of Corporal Lloyd D. Quattlebaum, RA 16042932 (CM 338803)

Applicant was tried by general court-martial at Fort Dix, New Jersey, on September 9, 1949. He was found guilty of false

1 CM 331849, Estrada, 80 BR 183, 196.

2 32 Am. Jur., Larceny, sec. 128, p. 1038, sec. 138, p. 1050; United States v. Danzo, 164 F. 2d 200, hn 1 (C. C. A. 2d 1947).

Paragraph 114a of the Manual for Courts-Martial, U. S. Army, 1928; cf. ACM 1247, Raymond, Jr., hn 2, 3, 1 CMR 514, 517.

Edwards v. United States, 139 F. 2d 365, 368, hn 7 (C.C.A. D.C. 1943), cert. den. 321 U. S. 769; United States v. Anderson, 45 F. Supp. 943, 950, hn 12 (D.C. S.D. Calif. C. D. 1942).

101 Am. St. Rep. 506.

• Cannon v. United States, 84 F. Supp. 820, 822, hn 3 (D.C. S.D. Calif. 1949); Ex Parte Roach, 244 F. 625, 628, hn 2 (D.C. N.D. Ala. M. D. 1917).

swearing, in violation of Article of War 96, and sentenced to dishonorable discharge, forfeiture of all pay and allowances becoming due after the date of the order directing execution of the sentence, and confinement at hard labor for one year. The reviewing authority approved the sentence and forwarded the record of trial pursuant to Article of War 50 (e). A board of review held the record of trial legally sufficient to support the sentence, which was ordered executed. Accused now presents an application for relief under Article of War 53, requesting a new trial. In substance, the case involves an affidavit made by accused that he had not endorsed an insurance check when, it was charged, he did not believe this to be true. It is contended in the petition that there was insufficient evidence to support the findings and sentence because prosecution's witnesses, Kelly and Hicks (endorsers on the check), were biased because of self-interest and because the insurance company's issuance of a second check to accused was proof that the first was forged, that five persons who could have testified in his behalf were not called as witnesses although they were mentioned during the testimony at his trial, and that the sentence adjudged is unjust. Accused lists the following individuals as the above witnesses:

First Lieutenant Arthur H. Standfield (who, applicant asserts, could have identified the person who brought the first check to him for approval);

The bartender at Kelly's Bar (urged as one who could have identified the person for whom he cashed the check and stated the time it was cashed);

Sergeant I. J. Thomas (who, it is contended, could have explained why he was willing to cover the amount of the check for accused, after the insurance company sent it back, if repaid by monthly allotments);

A representative of the Metropolitan Life Insurance Company (stated to be able to testify whether its handwriting experts believed the endorsement on the check to be a forgery); and

A representative of the Army Criminal Investigation Division (asserted to have been able to inform the court whether its handwriting experts had concluded that the endorsement on the check was a forgery).

The record of trial reveals that sometime prior to January 31, 1949, accused arranged with the Metropolitan Life Insurance Company to cash two insurance policies on his life and send the check for the proceeds to him at Fort Dix, New Jersey. Pursuant to agreement, the insurance company's check for $291.32, payable to Lloyd D. Quattlebaum, was mailed on January 31, 1949, to the address given by the latter. On March 9, 1949, when he went to

the office of the insurance company in New York and stated that he had not received the cash for his policies, a cancelled check to his order was shown to him, on the reverse side of which appeared one signature purporting to be his, one of "William M. Kelly" and below these two that of Arthur H. Standfield, First Lieutenant, Infantry, beside which were the letters "O.K." and a serial number. When accused claimed that the endorsement of his name on the check was a forgery, the seriousness of such a charge was explained to him by Mr. Dohm, Forgery Claim Supervisor of the insurance company. Thereafter the petitioner executed the company's form of "affidavit Declaring Endorsement a Forgery" before a notary public, swearing that the statements he made therein were true. In the affidavit petitioner declared that he had not endorsed the insurance company's check, that he had not authorized anyone to endorse it in his name, that the endorsement of that name thereon was a forgery, and that he had never received "the whole or any part of the proceeds" of the check.

Sergeant John Hicks testified that one day in February 1949 he was in the orderly room of the organization of which he and accused were members when he heard the latter inquire of Lieutenant Standfield if he would endorse a check so it could be cashed. The sergeant asserted that he thereafter took Quattlebaum in his car to Kelly's Bar in Wrightstown, New Jersey, where he saw applicant endorse the check with a pen and watched Mr. Kelly count out $291 plus some coins and give it to petitioner. Hicks also swore that later he again went to Kelly's Bar with accused and Sergeant Ivory Thomas because Mr. Kelly had reported that he could not get his money on the check and wanted the matter straightened out, that Sergeant Thomas proposed to accused that he would give Kelly his personal check to cover the amount of the one that had been cashed if accused would make an allotment to him in repayment. However, when accused denied ever having been in Kelly's Bar before, according to Sergeant Hicks, the proprietor proposed to turn the case over to the military criminal authorities.

Mr. Kelly testified that he cashed a check for $291 and some cents for a person resembling Quattlebaum on a Saturday afternoon, the 5th or 6th of February 1949, because he came in with Sergeant Hicks who was known to him, because Lieutenant Standfield had endorsed it on the back as "O.K.", and because accused showed him an Army pass with the name Lloyd Quattlebaum on it. After depositing the instrument in his bank he later received it back with a notation that forgery had been claimed by the payee.