* * * it is supposed to support must be rejected from the judicial balance. But when it is distinctly established that there exists between the factum probandum and the facts which are adduced in proof of it, a real connection, 'either evident and necessary or so highly probable as to admit of no other reasonable explanation' the proof becomes sufficient." Measured in this manner and tested by these standards, there was ample testimony at the trial to justify findings that currency of the United States Government was stolen from the hotel as charged and that Bodker committed the theft; the illegal entry pleaded was likewise well proved by evidence which met the strict requirements attendant upon proof by circumstantial evidence. A conviction based on reasonable inferences which the court had the right to draw from the facts adduced at the trial may not be set aside as unsupported by evidence. ** ** * 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 JAGY CM 336904 The Judge Advocate General 27 June 1950 MEMORANDUM OPINION SUBJECT: Application by Ivar T. Riise for Relief under Article of War 53 in the Case of Department of the Army Civilian Ivar T. Riise (CM 336904) Ivar T. Riise and Miguel M. Mateu, Department of the Army Civilians, were tried at a joint and common trial by general courtmartial at APO 331, Headquarters, Ryukus Command on April 5, 7, and 8, 1949. Applicant was found guilty of joint larceny of special property of the United States of a value of more than $50 (Specification 1), in violation of Article of War 93, 10 U. S. C. 1565. He was sentenced to pay a fine of $500 and to confinement at hard labor until the fine was paid (confinement not to exceed six months). The reviewing authority approved only so much. of the finding of guilty with respect to value "as finds some value not in excess of $20" and approved the sentence. The record of trial was examined, pursuant to Article of War 50 (f), 10 U. S. C. Dimmick v. United States, (supra), 264. Supp. II 1521, and found legally sufficient to support the sentence. The accused is not in confinement. Applicant, through his attorney, Fabian D. Brown, Esquire, of San Francisco, California, now presents an application under Article of War 53 specifically requesting vacation of sentence, restoration of rights, privileges, and property, and repayment of transportation. He contends that the findings and sentence were unjust and unsupported by the evidence in that accused was charged and convicted of larceny of Government property whereas the evidence shows, he urges, that if a larceny was committed it was not larceny of Government property but private property in which the Government had no interest, and that therefore he was not subject to trial by Army court-martial nor "under the 94th Article of War”. Larceny is the unlawful appropriation of personal property which the thief knows to belong either generally or specially to another, with intent to deprive such owner permanently of his property therein.' In a prosecution for larceny under Article of War 93, it is optional to charge the ownership as in either the special or general owner. The exact state of the title of stolen property is no particular concern of the thief, except that it must have been in someone else; evidence of possession is ordinarily sufficient proof of ownership." The record of trial reveals that accused was charged with joint larceny of special property of the United States under Article of War 93, not Article of War 94, as he asserts. Clearly, the United States Government had such "special" property, alleging special ownership thereof was entirely proper, and no variance resulted between this allegation and the proof that the property stolen was warehoused under Army control." * 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 1 Paragraph 180g of the Manual for Courts-Martial, U. S. Army, 1949. 2 Paragraph 180g of the Manual for Courts-Martial, U. S. Army, 1949; Kasle v. United States, 233 F. 878, 882, hn 3 (C. C. A. 6th, 1916); CM 187800, Michalowski, 49 BR 9, 11; CM 266206, Heselwood, 43 BR 177, 180; Winthrop, Military Law and Precedents (2d Ed., 1920 reprint) 686; 2 Wharton, Criminal Law (12th Ed., 1932) sec. 1179. $ 32 Am. Jur., Larceny, sec. 138. • CM 153557 (1922); CM 187800 (1929). JAGY CM 316774 28 June 1950 MEMORANDUM OPINION SUBJECT: Application for Relief under Article of War 53 in the Case of Private William L. Phillips, 34847532 (CM 316774) Applicant was tried by general court-martial at Furth, Germany, on August 9, 1946 for assault with intent to commit murder, in violation of Article of War 93, and sentenced to dishonorable discharge, total forfeitures, and confinement at hard labor for ten years. The reviewing authority approved the sentence but suspended that portion thereof adjudging dishonorable discharge, until accused's release from confinement. The record of trial was examined pursuant to Article of War 502, and found legally sufficient to support the sentence. The sentence as to confinement at hard labor, in excess of eight years, subsequently has been remitted by clemency action. Phillips now presents an application for relief under Article of War 53. Petitioner contends that his conviction was a miscarriage of justice for the reasons that if he committed the act he had no reason for committing it and that he has no recollection of having committed it. He further asserts that certain errors occurred at his trial, namely: "1. That the court's failure properly to conduct the investigation of Lt. Harry Drennon, challenged for cause, constituted reversible error. "2. That the evidence introduced was insufficient to support the findings. "3. That the accused was convicted upon the unsupported testimony of one witness alone,-i. e. Alvin Easley. "4. That the testimony of this witness (Easley) was repeatedly contradictory and that such contradictions were sufficient to cause rejection in whole or in material part of the testimony he offered. "5. That, while four other persons were in the room at the time the shot was fired, not one of these persons was called to testify by either the prosecution or the defense; and that the defense was under no obligation to call them though the prosecution was under such obligation. "6. That, from Easley's description of the position of the persons present, it would have been impossible for me to have shot the victim in the abdomen, though testimony of both Easley and the nurse is to this effect. "7. That the evidence indicates that I was drunk or had been drinking, and that under such circumstances, the theory that Easley or someone else could have fired the shot and then handed the pistol to me is highly tenable. "8. That this theory in light of the absence of direct evidence that I was seen to fire the shot which struck the victim, presents a 'fair and rational hypothesis except of guilt' as defined in Par. 78, MCM 1928. "9. That in addition to the above theory, grounds for reasonable doubt sufficient to make acquittal mandatory under the provisions of AW 31 existed." Evidence in the record of trial is to the following effect: that on the evening of February 12, 1946 a German laundrygirl named Rosa Schmoller was in a barracks room of the 3916 Gas Supply Company at Raubling, Germany, together with another German girl, Technician Fifth Grade Alvin Easley, Private Paul Bowie, and the accused; that the accused said to Rosa Schmoller, "Come, I want to speak with you", to which she replied "No"; that he repeated his command, the girl again answering in the negative; Phillips stated "Wait until I take a drink", and then ordered, "Come"; that when she refused, he shot her, the bullet striking in the right side of her abdomen and causing a serious wound. Technician Fifth Grade Easley, who previously had testified for the prosecution, was called as a defense witness and testified in substance: that there were five people in the room (which was rectangular in shape and about 10 feet by 12 feet in dimensions) at the time of the offense; that he did not see accused take a drink, but merely heard him state, "I think I'll get a drink". Easley testified further that he did not know where Phillips obtained the pistol, but only saw it in his hand after hearing the shot fired and at that time the victim was sitting with her right side toward petitioner. His testimony was not controverted. Applicant elected to remain silent. No evidence is presented in support of the application and examination of his assertions of error does not disclose that they contain substance of merit. First Lieutenant Harry Drennan was challenged for cause because of alleged prejudice. He was examined on voir dire by the defense counsel as to whether he had previous knowledge of the case and not as to any prejudice for or against the accused which he might entertain. Since the accused did not elect to utilize his peremptory challenge against this officer or any other after the challenge for cause was denied, it is clear that petitioner and his counsel were satisfied at that time to permit Lieutenant Drennan to remain as a member of the court and accordingly it cannot be said that any prejudice to applicant resulted. Moreover, no basis for an assertion of bias was shown. It appears that the accused was challenging the member because he was a prison officer. No authority is discovered for an assertion that this without more would disqualify a court member. The evidence direct and circumstantial adduced at the trial, amply supported the findings of the court. Phillips was positively identified as having a gun in his hand immediately after the shot was fired and no other firearm is mentioned. There was no evidence introduced to show that he was intoxicated and there were no discrepancies of consequence in the witnesses' testimony. The evidence clearly revealed that accused was in a position to shoot the girl in the manner alleged and the only individual present who could have done so. Circumstantial evidence when meeting the fair tests required by the law is as satisfactory as direct evidence.1 None of the witnesses applicant now contends should have testified at his trial were called by the defense, although all were known to accused at the time. The prosecution was under no obligation to call them. There is no indication in the record of trial or allied papers that any of them were unavailable, and the defense did not move for a continuance in order to obtain their testimony either directly or by deposition. Furthermore, accused does not show by affidavit or otherwise that any of the missing witnesses were possessed of information which would probably produce findings different from those reached by the court. Examination of pre-trial statements of the two German girls indicates that their testimony would have harmed, not helped, Phillips. There is no reason to conclude that Bowie's would be of a different tenor. * * * 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 1 Lukon v. Penna. Ry. Co., 131 F. 2d 327, 329, hn 5 (C. C. A. 3, 1942). 2 Jackson v. Sanford, 79 F. Supp. 74, 76, hn 4, 5 (D.C. N.D. Ga., 1947), affd. 163 F.2d 875, cert. den. 332 U. S. 848. |