In the record of trial it appears that accused was represented by individual counsel as well as by the regularly appointed defense counsel and at the outset of the trial expressed satisfaction with such representation. He further stated that he had sufficient time to confer with counsel and to prepare his defense and he did not desire a postponement of the trial. Records of the Department of the Army show that accused's individual counsel was a graduate of the University of Minnesota Law School and was a member of the Minnesota Bar. They further reveal that the regularly appointed defense counsel attended Louisiana State University Law School, and was for seven years in civil life a practicing attorney. The official record of trial further indicates that these lawyers performed their duties intelligently, diligently, and competently." It has been said that it is a favorite game of those convicted of offenses to criticize their counsel. "The opportunity to try his former lawyer has its undoubted attraction to a disappointed prisoner." One convicted in a court-martial may not complain that he was inadequately represented by his own deliberately selected counsel.' The complaining witness may testify as to whether she made complaint of the injury, and when and to whom. It is noted that the record of trial shows that she did not testify as to the particular facts which she stated in making the complaint. The time which intervened between the commission of the crime and the making of the complaint is a subject for the consideration of the court in passing upon the weight of the evidence." The actions on the part of Wincelowicz, Smith, and Gonzales were concerted from their inception, and resulted in such complete exhaustion of the victim that it was not necessary for her to be held at the time of the final incident. Although it is possible that accused was not actually present during this last occurrence, it may reasonably be presumed that his presence in the general vicinity gave confidence to Gonzales. In view of all the facts and circumstances, the presence of accused in the vicinity where he could have come to Gonzales' aid if such had been necessary, and the pre-trial statement of Wincelowicz, there is believed to have been sufficient evidence to support the finding of guilty of Specification 1, Charge 1.1° 10 cf. United States v. Ragen, 176 F. 2d 579 (C. A. 7th, 1949). Diggs v. Welch, 148 F. 2d 667, 669, hn 3, 4 (C.C.A. D.C., 1945), cert. den. 325 U. S. 889. Adams v. Hiatt, 79 F. Supp. 433, hn 3 (D.C. M.D. Pa., 1948); Morton v. Welch, 162 F. 2d 840, hn 3 (C. C. A. 4th, 1947); Moss v. Hunter, 167 F. 2d 683, hn 1 (C. C. A. 10th, 1948), cert. den. 334 U. S. 869. 8 Harris v. United States, 269 F. 481, hn 1 (1920) citing 3 Greenleaf on Evidence, para. 213. Roney v. United States 43 App. D. C. 533, 535, hn 2 (1915). 10 3 Bull JAG 284, CM ETO 1453, Fowler 4 BR ETO 337, 348. Private Buresh's statement of what occurred is convincing and is corroborated by her physical appearance, the condition of her genitals, the presence of blood on the slip and spematozoa on the skirt she wore on the night she was criminally assaulted. Furthermore, accused's pre-trial statement fully supports every important detail testified to by the victim. There was sufficient corroboration to support the findings. The circumstances surrounding the parties at the time were such as to point to the probable guilt of the accused and corroborated indirectly the testimony of the prosecutrix." The entire record of accused's court-martial has been studied in an effort to discover any evidence of prejudical error. The proceedings disclose that during the trial 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."2 The court had jurisdiction over applicant and over the offenses of which he was convicted. There was no error injuriously affecting the substantial rights of accused, and the greater weight of the credible evidence supports the findings. Under the mandate of Article of War 9213 as then in effect, a sentence of death or imprisonment for life was mandatory. It is noted that the maximum punishment for rape, provided in a federal law relating to civil offenses is the death penalty." This was a crime of sordid violence, the offense being incidentally against the victim, but basically against society as represented by the government. In determining the justness of the penalty, the sentence must be measured, therefore, not by the present sentiments of the former but by the fair desiderata of the latter. * * * Good cause for the granting of relief under Article of War 53 does not appear; accordingly, the petition will be denied. E. M. BRANNON Major General, USA 11 cf. Ewing v. United States 135 F. 2d 633, 635, hn 3 (App. D. C. 1942), cert. den. 318 U. S. 776. 12 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). 18 10 U. S. C. 1564. 14 18 U. S. C. Supp. II, 2031. JAGY CM 338263 27 June 1950 MEMORANDUM OPINION SUBJECT: Application for Relief under Article of War 53 in the Case of Corporal William H. Bodker, RA 18300964 (CM 338263) Applicant was tried by general court-martial at Toyko, Japan, on August 9 and 10, 1949, and found guilty of stealing government currency in the sum of $5,639.84 (Specification 1), and housebreaking (Specification 2), both in violation of Article of War 93 (Charge I); he was also convicted of breach of restriction (Specifications 1 and 2), of unauthorized wearing of civilian clothes (Specification 3), and of unlawfully impersonating a Criminal Investigation Division agent (Specification 4), all in violation of Article of War 96 (Charge II). He was sentenced to dishonorable discharge, total forfeitures, and confinement at hard labor for six years. The reviewing authority approved only so much of the finding of guilty of Specification 1 of Charge I as found accused guilty of feloniously stealing $5,112.78, disapproved the findings of guilty of Specifications 3 and 4 of Charge II, and reduced the period of confinement at hard labor to five years. A board of review, constituted under Article of War 50, held the record of trial legally sufficient to support the sentence, which then was ordered executed. The sentence as to confinement subsequently has been reduced through clemency action to four years. Bodker, through his attorney, Mr. Thomas D. Aitken, Tokyo, Japan, now presents an application for relief under Article of War 53. In his application petitioner contends that the court exceeded its jurisdiction in finding him guilty of "larceny" and housebreaking for the reason that there was no evidence adduced to prove that the offenses had been committed. He further alleges that the court erred in denying the motion to dismiss the specification of housebreaking. Evidence for the prosecution was adduced to the following effect: that accused, as cashier of the Exchange Hotel (used as an Army dependents' billet), was entrusted with large sums of money belonging to the United States Government; that he habitually carried substantial amounts on his person, gambled heavily and spent money freely; that instead of keeping the Government's money in the hotel safe, as he had been ordered to do, he left it in his desk, or carried it on his person, and co-mingled it with his own funds; that on March 15, 1949 his office was dis covered in a state of complete chaos apparently having been ransacked, but that he denied all knowledge of the matter; that subsequent investigation showed that Bodker was short $5,112.78 in his accounts (unexplained by him); that he had visited his office briefly on March 13th just before midnight, the night desk clerk locking the door when he left and noting that Bodker then went outdoors, (both keys to the cashier's room were then at the desk); that the screen was at that time in place on the cashier's window; that a few minutes later, at approximately 12:20 a. m., March 14, 1949, he was observed in the cashier's office by a Japanese guard, at which time the office window was open and the outside screen had been removed. March 14th was accused's day off; on the 15th he appeared at the front desk but repaired to the dispensary; the disordered room was discovered by the manager that afternoon during Bodker's absence. Tanaka, the hotel elevator boy, testified that at midnight March 13, 1949, he had entered the office with accused and that upon leaving it three or four minutes later the door was locked. The hotel night desk clerk, Ichikawa, supplied essentially the same evidence as Tanaka's and added that Bodker left the hotel after he came out of the office but that the keys remained at the desk. Ichikawa stated that, although he did not know the exact time accused left the hotel, he was positive it was before 12:15 a.m. March 14, 1949. Other witnesses testified that accused had violated his restriction on the dates charged. On cross-examination, the defense developed the fact that the keys to Bodker's desk were easily obtainable by other people. Easter Kennedy, a defense witness, testified that petitioner and a Mr. Smith had taken her home at 12:10 a.m. March 14, 1949 and Smith swore that he had then accompanied accused to the office at 12:20 or 12:25 a. m. March 14, 1949, accused retiring to his room. Bodker elected to remain silent. At the outset of the trial a defense motion to dismiss the housebreaking specification on the ground that it did not state an offense, was denied. The offense of housebreaking is predicated upon an unlawful entry of the building of another with intent to commit a criminal offense therein. It is immaterial whether the offense was actually committed or whether the facts were such that it was physically possible for the offense to be committed. Military charges need not be drawn with the particularity of a common law indictment.1 17 Op. Atty Gen 601, 604; Carter v. McClaughry, 183 U. S. 365, 386; Collins v. McDonald. 258 U. S. 416, 420; In re Yamashita, 327 U.S. 1, 17. The specification was in proper form' and the motion to dismiss it was properly denied. Intent as an element of a crime may be, and usually is, proved by actions from which it may be inferred.' Competent evidence warranted the inference that Bodker had surreptitiously and unlawfully entered the cashier's office in the dark of night, with larcenous intent, as he was charged. Applicant correctly states that in military law former distinctions between larceny and embezzlement were abolished before the date of the offenses sub judice. This was accomplished with the manifest intention of avoiding unnecessary technicalities of pleading which defeated justice and served no useful purpose.* Therefore, counsel's contention, that the asserted larceny pleaded in the housebreaking specification should have been alleged as embezzlement, is without force. It is argued by counsel for applicant that the evidence as to the shortage in Bodker's currency does not prove that it had been stolen. The answer depends upon whether the absence of the money can be accounted for upon any other reasonable theory than that of unlawful abstraction. In the light of the unexplained shortage of money for which Bodker was accountable (taken with his suspicious actions and the evidence of co-mingling) it was not necessary, as asserted by petitioner, in order to convict to establish that the money alleged to have been stolen, or any part of it, was ever in Bodker's desk." "Every criminal charge necessarily involves two distinct propositions: (1) that a criminal act has been committed; (2) that the guilt of such act attaches to the particular person charged with the commission of the offense. Each of these facts must be proved beyond a reasonable doubt, either by direct testimony or by presumptive evidence of the most cogent or irresistible kind. The proof must in both cases be clear and distinct, but it is not necessary that it should be direct and positive. The general rule is now well settled that in all criminal cases the corpus delicti may be established by circumstantial evidence." In establishing the facts in this case the prosecution independently proved by the chain of facts heretofore related the essential elements necessary to be proved. "It is true that every circumstance not clearly shown to be connected as its correlative with the hypothesis * * * 2 Page 323 of the Manual for Courts-Martial, U. S. Army, 1949. 3 Savitt v. United States, 59 F. 2d 541, 543, hn 9 (C.C.A. 3rd, 1932); Page 240 of the Manual for Courts-Martial, U. S. Army, 1949. • Crabb v. Zerbst, 99 F. 2d 562, 564, hn 3, 12 (C. C. A. 5th, 1938). 5 Dimmick v. United States, 135 F. 257, 262 266, hn 1, 2, 3, 4, (C. C. A. 9th, 1905); paragraph 125a, page 151 of the Manual for Courts-Martial, U. S. Army, 1949; CM 234153, Shirley, 20 BR 259, 262, 263. • Dimmick v. United States, (supra), 263. |