assertedly requested were influenced in some way not to represent him are so generalized and unsupported as to be entirely nonpersuasive. It has been said that it is a favorite plan of those convicted of an offense to criticize their counsel." There was no variance between the offense charged and that established by the evidence. Accused was charged with violation of the current War Department order restricting marriage without official approval. Applicant misconstrues the purpose of the evidence concerning the directive which this circular (307) superseded. It appears to have been considered for the purpose of meeting petitioner's contention that he was ignorant of the prohibition against marriage. The superseded circular had been in effect since 1942 and it contained terms which were very similar to those in Circular 307. The dereliction of which Lieutenant Millar was convicted, however, was violation of the provisions of the latter Army circular. A War Department Circular is effective as a part of the written military law on the date of its promulgation, i.e., the date of its release and distribution by deposit in the mails." Whether or not this directive was distributed to petitioner's unit on or about the date it bears in the regular course of business, it is obvious that applicant is properly chargeable with having known of the requirements with which he failed to comply, in view of the existence, for approximately two years, of a prior directive containing restrictions against marriage without permission, substantially like those in the circular pleaded." * * ** 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 The Judge Advocate General Diggs v. Welch, 148 F. 2d 667, 669, hn 3, 4 (C. C. A. D. C., 1945) cert. den. 325 U.S. 889; Sanford v. Robbins, 115 F. 2d 435, hn 13 (C. C. A. 5th, 1940). Paragraph 14b, Army Reg. 310-50, War Dept. Aug 8, 1942. 7cf Lapeyre v. United States, 84 U. S. 191, 21 L.Ed. 606 (1872); Robertson v. Bradbury, 132 U. S. 491, 493, hn 1, 10 Sup. Ct. 1588, 33 L. Ed. 405; Louisville v. Savings Bank, 104 U. S. 469, 476, hn 2 (1881); Bradley v. Union Bridge Construction Co., 185 F. 544, 546 hn 2 (U. S. D. C. D. of Oregon) (1911); cf Myers v. H. L. Rust Co., 134 F. 2d 417, 418, hn 1 (App. D. C. 1943). JAGY CM 334126 30 June 1950 MEMORANDUM OPINION SUBJECT: Application by Lewis Madden for Relief under Article of War 53 in the Case of Private Lewis Madden, RA 35787211 (CM 334126) Applicant was tried by general court-martial in a common trial with Corporal Edward A. Barlow, Private First Class Dewey F. Stout, and Private James L. Gregory, at Fort Hayes, Columbus, Ohio, on October 28, 1948, and found guilty of larceny and sale of government property, in violation of Article of War 94 (Specifications 1, 3, and 5, larceny, value of $120.98, $174.90, and $101.13, respectively; Specifications 2, 4, and 6, wrongful sale, value of $120.98, $174.90, and $101.13, respectively). He was sentenced to dishonorable discharge, total forfeitures, and confinement at hard labor for one year. The reviewing authority approved the sentence but suspended that portion thereof adjudging dishonorable discharge until Madden'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 months was subsequently remitted by clemency action. Petitioner was released from confinement on May 7, 1949. He now presents an application for relief under Article of War 53. In his petition Madden asserts that, "the Law Member of the Court that tried me, reading the records of the trial, stated that six months' sentence was the maximum for the charge on which I was found guilty. * * * When I was sentenced, I was told that I would be imprisoned for one year and given a Dishonorable Discharge. I served eight months in confinement, the sentence having been reduced four months by clemency. I feel that some error was made in sentencing me to confinement in excess of the maximum penalty for the charge on which I was tried, and, having served time in excess of the maximum imposed, feel that some re-dress could be made through change of the Dishonorable Discharge that was issued me to a more favorable discharge certificate." The trial in question was a rehearing of the same charges ordered because of a technical defect in the law member's instructions in the first trial. At the original hearing petitioner was sentenced to dishonorable discharge, total forfeitures, and confinement at hard labor for eighteen months. For conviction of the six specifications of which Madden was found guilty the maximum authorized sentence as to confinement at hard labor at the original hearing was thirty years. At the rehearing by virtue of the limit imposed by the previous sentence, the maximum authorized sentence as to confinement was limited to eighteen months.' Madden pleaded guilty and the law member in explaining the consequences of the plea erroneously stated that the maximum sentence was dishonorable discharge, total forfeitures, and confinement at hard labor for six months. ""When the law member, explaining to an accused the effect of his plea of guilty, erroneously states the maximum punishment that may be adjudged to be less than the maximum punishment authorized and the accused is convicted upon his plea of guilty, no evidence being introduced, the punishment imposed may not exceed that so stated by the court in its explanation (Dig. Op. JAG, 1912-1940, sec 378 (2), p. 188, CM 144220 (1921)). ""Where, however, the prosecution introduced substantial competent evidence to establish accused's plea of guilty no substantial right of the accused was violated where the punishment imposed exceeds that stated by the court in its explanation (CM ETO 3507, Goldstein).'"" Though at the former trial the prosecution offered proof of the offenses charged, no evidence was introduced at the rehearing. For details as to the commission of these offenses reference must be made to the record of the previous trial which was not received in evidence at the rehearing. That record could not be examined as to the evidence offered at the first hearing without having been received in evidence. It should be remarked, in passing, that evidence of guilt is not required, (though better practice calls for it), in case a plea of guilty is properly entered.* Under the law as cited above a conclusion is compelled that an injustice was done applicant as to the length of confinement adjudged in that the erroneous advice of the law member limited the maximum sentence he should have received to dishonorable discharge, total forfeitures, and confinement at hard labor for six months; however, the type of discharge included in the sentence was within the stated maximum to which he subjected himself by his plea of guilty. Notwithstanding that no other points were raised by applicant, the entire record has been studied in an effort to discover whether any further injustice occurred. The proceedings disclose 1 Page 73, paragraph 87b, Manual for Courts-Martial, U.S. Army, 1928. 2 CM 280680, Madison, 53 BR 299, 301. 3 Paragraph 84, Manual for Courts-Martial, U.S. Army, 1928. U. S. v. Colonna, 142 F. 2d 210, 213, hn 6, (C. C. A. 3rd, 1944); "A plea of guilty is a waiver of trial. It is in itself a conviction and is conclusive."; U. S. v. Bayard, 23 Fed. 721, (C. C. S. D. N. Y., 1883); U. S. v. Denniston, 89 F. 2d 696, 698, hn 1, 5, (C. C. A. 2d, 1937); CM 283260, Leamenes; CM 314736, O'Loughlin, Jr.; See also Kercheval v. U. S., 274 U. S. 220, 223. that during the trial the procedures provided by military law were applied in a fundamentally fair way. This, for those subject to that judicial system, constitutes due process of law. The court had jurisdiction over petitioner and over the offense of which he was convicted. There was no error injuriously affecting the substantial rights of applicant, and the greater weight of the credible evidence supports the findings. A sentence of dishonorable discharge, total forfeitures and confinement at hard labor for six months is legal and not excessive. Theft from the government by its own employees is not a minor offense. In view of the facts outlined above, so much of the sentence as to confinement at hard labor as involves confinement at hard labor in excess of six months will be vacated and any rights, privileges, and property, affected by the portion thus vacated, will be restored to him; in other respects, the petition for relief is denied. E. M. BRANNON JAGY CM 283613 The Judge Advocate General 5 July 1950 MEMORANDUM OPINION SUBJECT: Application for Relief Under Article of War 53 in the Case of Private Ramon Collazo-Colon, 30426650 (CM 283613) Applicant was tried by general court-martial at Camp O'Reilly, Puerto Rico, (APO 853, c/o Postmaster, Miami, Florida), on June 26, 1945. He was arraigned upon charges and specifications involving theft on about May 20, 1945 of 139 eggs, value about $4.98, property of the United States and furnished and intended for the military service thereof, in violation of Article of War 94 (Charge I and its specification), and a violation on about May 20, 1945 of "Paragraph 4, Unnumbered Memorandum, Headquarters APO 853" dated December 26, 1944 by attempting to take out from APO 853 100 packages of cigarettes, in violation of Article of War 96 (Charge II and its specification). He was found guilty as charged and sentenced to dishonorable discharge, total forfeitures, and confinement at hard labor for one year. The review 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). ing authority approved the sentence and ordered it executed but suspended execution of that portion thereof adjudging dishonorable discharge until accused's release from confinement. The record of trial was examined pursuant to Article of War 501⁄2, and found legally sufficient to support the sentence. Applicant was dishonorably discharged on April 25, 1946. He now presents an application for relief under Article of War 53. In his petition under Article of War 53 he requests a complete review of his case. He alleges that there was insufficient evidence to prove that he was the one who "took out the packages of cigarettes and eggs" and complains that no action was taken against the other persons involved in the same offense. On the copy of his record of trial, which is attached to the petition, he makes notations as to asserted inaccuracies and inconsistencies in the testimony of various witnesses. The record of trial reveals that at 11:20 a. m., on May 20, 1945, accused, a member of Headquarters and Headquarters Detachment, Camp O'Reilly, Puerto Rico, and two other soldiers were apprehended by a military policeman as they were about to leave the camp through the trash gate, a forbidden exit. They made a quick turn in an attempt to flee at the policeman's approach. Applicant was carrying a bag containing approximately 140 American hen eggs, of a type similar to those issued by the Quartermaster to the organization messes and the post commissary and either he or a companion also had at least ten cartons of American cigarettes in a container. He later told the Corporal of the Guard that he had bought the cigarettes. At about 8:00 a. m. on the same day, approximately 144 eggs had been discovered missing from the Headquarters and Headquarters Detachment mess hall. Accused had been seen wandering about in the mess hall and kitchen at about 8:20 a. m. The "value" of eggs sold at the commissary during the month of May 1945 was 43¢ a dozen. Collazo-Colon was not authorized to purchase there. Paragraph 4, Unnumbered Memorandum, Headquarters APO 853, c/o Postmaster, Miami, Florida (Camp O'Reilly, Puerto Rico), dated December 26, 1944, prohibited military personnel from taking "any quantity of cigarettes in excess of six packages" outside the limits of the post. There was no evidence concerning the dissemination given the memorandum or the contents thereof. One of the soldiers apprehended with accused, appearing as a witness for the defense, testified that accused had two packages when apprehended, and had told him he had found some eggs and cigarettes. Accused elected to remain silent. |