JAGY CM 293506

28 June 1950

MEMORANDUM OPINION

SUBJECT: Application for Relief under Article of War 53 in the Case of Technician Fourth Grade Lawrence Cook, 34043065 (CM 293506)

Applicant was tried by general court-martial at Dijon, France, on December 22-23, 1944 and found guilty of rape, in violation of Article of War 92. He was sentenced to dishonorable discharge, total forfeitures, and confinement at hard labor for life. The reviewing authority approved the sentence. A board of review in a Branch of the Judge Advocate General's Office with the European Theater of Operations constituted under Article of War 5012, held the record of trial legally sufficient to support the findings and the sentence, execution of the sentence then being ordered executed. By subsequent clemency action the sentence to confinement at hard labor has been reduced to fifteen years. Accused now presents an application for relief under Article of War 53 requesting vacation of the sentence and restoration "to honorable service".

Cook applied for a writ of habeas corpus to the Federal District Court, Northern District of Georgia, Atlanta Division which was dismissed on November 22, 1949 without prejudice to presentation of a new application after compliance with Article of War 53.1

Applicant in his petition for relief here makes the following contentions: that the court-martial was not legally constituted and did not have jurisdiction over the offense or the accused since the law member was not a member of the Judge Advocate General's Department, citing Article of War 8; that the defense counsel was incompetent, gave no preparation to the case, failed to object to leading questions and presented only a token defense; that the identification of accused was not conclusive and in this connection alleges that the methods of attempting identification were contrary to the accepted judicial practice; and that the verdict of guilty was contrary to the evidence and facts of the

case.

The record of trial contains evidence to the following effect: that on the afternoon of September 25, 1944 a colored American soldier appeared at the home of Madame Jeanne Carretto in Mourchard, France, wearing a helmet or helmet liner and jacket, and attempted to sell a blanket; that upon her refusal to purchase

1 Cook v. Hiatt, U. S. C, N. D. Ga., N. C. No. 2456 (1949).

it he departed in the direction of the home of Madame Berthe Dugois, aged 74 years, which was about 30 meters distant; that shortly thereafter, at about 3:00 p. m. September 25, 1944 a negro American soldier suddenly appeared at Mrs. Dugois' home carrying a blanket and wearing a jacket and helmet, seized her and attempted to have sexual intercourse with her; that due to the disproportionate size of their genitals there was only a minor penetration; that upon being released she went to the home of Madame Carretto.

There was testimony that the period of time between the soldier's departure from the Carretto house and the arrival of Madame Dugois was not more than 15 minutes, and that through efforts of Etienne, accused (who was re-located, running near a cabbage patch), was apprehended as he was returning to the replacement depot where he was stationed. He was dressed as above described and still carrying a blanket, but under his jacket. Upon arrival at his bivouac area he slipped away from his captor, changed from his jacket, disposed of the blanket and reappeared wearing the chevrons of a staff sergeant, according to the evidence. Between one identification at the Dugois home and a second, accused removed his chevrons.

Shortly after apprehension Cook was taken to the home of Madame Dugois where Madame Carretto pointed him out as the man who had been at her house shortly before the attack. Thereafter on the same day, accused was again returned to Madame Dugois' residence in a group of 25-30 colored soldiers who were dressed similarly at which time, according to the evidence, Madame Carretto identified applicant from the group. She and her son Etienne both later recognized him at the trial.

Madame Dugois was unable definitely to identify accused as her assailant at the trial. She testified that twice later the same day as that of the offense, she saw and "recognized" the person who had raped her. She "knew him again quite well that day."

A number of witnesses testified for the defense, and other testimony was introduced by stipulation to the effect that on the day in question applicant was present with his blanket and running a "crap game" in the bivouac area until within from 10 to 20 minutes, as variously estimated by witnesses, before he was seen being returned to the area in the custody of a sentry. When he left the dice game he was carrying a blanket. His whereabouts were not accounted for during the period of time when the offense was said to have occurred.

The accused elected to remain silent.

The record of trial does not indicate that the law member of the court was a member of the Judge Advocate General's Depart

ment. However, records of the Department of the Army disclose that Lieutenant Colonel Janof, the law member, was a mature officer 34 years of age and a graduate of the United States Military Academy (1936); he competently performed the duties of law member; there is nothing to indicate that his selection was not a sound and reasonable exercise by the officer appointing the court of his discretion in the matter nor that a member of the Judge Advocate General's Department was "available for the purpose" of service as law member."

The regularly appointed defense counsel and assistant defense counsel, a lieutenant colonel and a major, cross-examined prosecution witnesses, made timely objections to the introduction of evidence, and otherwise protected the interests of accused.

Applicant highlights a statement of defense counsel, "I am a bit confused", taken out of context, and infers that counsel was evidencing a general state of lack of awareness as to the proceedings then in progress. The record supports no such construction. The remark referred to the question whether Cook was a member of the 381st or 380th Replacement Company, a collateral matter of no importance, since the court-martial had jurisdiction of accused in either event. The point was only material in connection with identity (admitted by the plea of not guilty). Nothing has been discovered which demonstrates that defense counsel lacked competency or that they were wanting in loyalty, intelligence, diligence and skill in defending their client. It has been said that it is the favorite plan of those convicted of a criminal offense to criticize their counsel."

The question of the identification of the applicant was one of fact initially for the court, whose province and duty was to evaluate the evidence presented and reach a determination whether the accused was the individual who committed the crime. In this respect the decision of the court before which the witnesses appeared in person, is entitled to great weight and nothing of substance has been discovered which would justify disturbing its findings.

It cannot be held that the receipt of testimony with respect to the pretrial identification of accused, adversely affected his substantial rights inasmuch as aliunde this proof, circumstantial evidence inconsistent with any responsible hypothesis of innocence and excluding any other reasonable hypothesis of guilt

2 Hiatt v. Brown, 339 U. S. 103 (1950); Article of War 8; Paragraph 4e, Manual for Courts-Martial, U. S. Army, 1928.

3 CM 161106, Morgan (1924); CM 318728, Chmura, 68 BR 23, 24; CM 296303, Burdick (1946), 58 BR 103, 104; CM 252133, Spainhour (1944), 34 BR 7, 8.

Hayes v. Hunter 83 F. Supp. 940; Moss v. Hunter 167 F. 2d 683, 684, cert. denied June 21, 1948, 334 U.S. 860, 60 S. Ct. 1519, 92 L. Ed. 1780.

Diggs v. Welch 148 F. 2d 667, hn 1, 2, 5 (C.A. D.C. 1945) cert. denied 325 U. S. 889, Sanford v. Robbins, 115 F. 2d 435, hn 13 (C. C. A. 5th 1940).

sufficiently established his participation in the offense so as to support the court's action in adjudging his guilt. Circumstantial evidence when meeting the fair tests required by the law is as satisfactory as direct evidence."

The evidence that Cook was seen running from the situs of the crime and on two occasions changed his appearance before efforts at identifying him were to be made is not without its importance.

An attempt to flee and attempted acts of concealment of identity may indicate a mens rea and are evidence from which guilt may be inferred."

* * *

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 Private Alton O. Evans, 34957821, et al (CM 318723).

Evans, the applicant, was tried, jointly with Private Douglas B. Dillard, by general court-martial at Tokyo, Japan, on October 7, 1946, and found guilty of assault with intent to commit a felony, viz, murder, in violation of Article of War 93. He was sentenced to dishonorable discharge, total forfeitures and confinement at hard labor for 20 years. The reviewing authority approved the sentence. A board of review constituted under Article of War 502, held the record of trial legally sufficient to support the sentence which then was ordered executed. Evans now presents an application for relief under Article of War 53.

In his petition, accused requests that his sentence be vacated, contending, (without supporting evidence or particularization),

"O'Leary v. U. S. 160 F. 2d 333, hn 1 (C. C. A. 9th, 1947); CM NATO 1069 Scott, et al, 2 BR NATO NTO 323, 327.

Lukon v. Penna. Ry. Co., 131 F. 2d 327, 329, hn 5 (C. C. A. 3d, 1942) "* Circumstantial evidence has probative value equal to that of direct evidence"; Christie v. Callahan 124 F. 2d 825, 839, hn 16 (C. C. A. D. C. 1941); U. S. v. Pacific Express 15 Fed. 867 (D.C. Dist of Kan. 1883); Tucker Steve. Co. v. Gahagen 6 F. 2d 407, 410.

8 Hickory v. United States 160 U. S. 408, 417, 422, hn 2, 40 L. Ed 474, 16 S. Ct. Rep. 327; Allen v. U.S. 164 U. S. 492, 499, 41 L. Ed 528, 17 Sup. Ct. Rep. 154; Kanner v. United States 34 F. 2d 863, 866, hn 6 (C.C.A. 7th 1929).

that he was denied due process of law in that the law member was not a member of the Judge Advocate General's Department in violation of Article of War 8, that there was a failure to comply with Article of War 70 during the pretrial investigation, and that defense counsel was incompetent.

The record of trial reveals that no member of the court was a member of the Judge Advocate General's Department. However, the files of the Department of the Army show that Colonel Tyler J. Walker, who served as president and law member, was a mature officer of long service in the Army. I find he competently performed his duties.

Evans does not specifically state the alleged irregularities upon which he bases his contention that there was a failure to comply with the provisions of Article of War 70 during the pretrial investigation. However, from papers accompanying the record of trial it is ascertained that after he was placed in confinement and charges against him were drawn, an officer was designated to conduct the investigation thereof pursuant to Article of War 70. The latter's report indicates that he made a thorough and impartial investigation and states in substance that Evans was informed of the nature of the charges alleged against him, of the names of the accuser and the witnesses as known to him, of the fact that the charges were about to be investigated, of his right to cross-examine all available witnesses against him and to present anything he might desire in his own behalf, of his right to have the investigating officer examine available witnesses requested by him, and it further appears that Evans was informed of his right to remain silent or to submit a sworn or unsworn statement. The report also discloses that five statements, including those of the two accused, were obtained by the investigating officer and other officers, in the course of the investigation.

The record of trial reveals that at the outset of the trial Evans introduced First Lieutenant Austin L. Jones as special defense counsel. Applicant specifically stated that he had been afforded sufficient time to discuss the case with counsel, to assist him in the preparation of his defense including "the obtaining of witnesses" and securing "their presence in court."

There is nothing to indicate that the selection of Colonel Walker to serve as law member was not a sound and reasonable exercise by the officer appointing the court of his sound discretion in the matter or that there was a member of the Judge Advocate General's Department available for the purpose of service in that capacity.'

1 Hiatt v. Brown, 339 U. S. 103 (1950); Article of War 8, 10 U. S. C. 1479; Paragraph 4e of the Manual for Courts-Martial, U. S. Army, 1928.