Whether accused's companions were brought to trial for their connection with the alleged offenses was a matter, solely within the discretion of the appointing authority, which in no way affects the issue of accused's guilt or innocence.1 The socalled inaccuracies and inconsistencies were minor in nature, for the most part were based upon misunderstandings of the questions propounded and were clarified later. They were of the type that appear in most cases where testimony, with its human variables, is the means of proof and are one ear-mark of evidence which is not prearranged.

Competent evidence of record shows that 139 or 140 eggs of a type issued to messes and the Commissary, but which accused could not have obtained properly on the post were found in his possession at the time and place alleged, under highly suspicious circumstances, less than four hours after substantially similar quantities of eggs were missing from a mess hall to which accused had access. Under the circumstances reflected by the evidence, including unexplained possession of recently stolen property, plus proof of a destination from, not towards, the place where such a find should be reported, there was a sufficient showing to support the court's findings of guilty as to Charge I and its specification, and nothing has been presented which would justify disturbing them.' The attempted explanation that Collazo-Colon had found the eggs, and 100 packages of cigarettes, taxes credulity, is not convincing and does not overcome the presumption of guilt arising from such possession. An attempt to flee is evidence of a mens rea.*

The findings of guilty of Charge II and its specification are not supported by the evidence in that the record is devoid of proof that accused had been notified, either actually or constructively, of the local order alleged to have been violated." Consequently these findings cannot be permitted to stand, and the sentence must be reduced to accord with the findings which were properly approved.

1 Manual for Courts-Martial, 1949, para. 5; Saunders v. Lowry, 58 F. 2d 158, 159, hn 1 (C. C. A. 5th, 1932); Grell v. United States, 112 F. 2d 861, 875, hn 11 (C. C. A. 8th, 1940); U. S. ex rel Coats v. Hill, 29 F. Supp. 890, 891, hn 9 (D.C. M.D. Penn, 1939). 2 CM 307143, Klingensmith (1st Ind), 60 BR 375; Agnew v. United States 165 U. S. 36, 50, hn 7.

Loftus v. United States, 46 F. 2d 841, 845 hn 3, (C. C. A. 7th, 1931) Donegan v. United States 287 F. 641, 647, hn 3, (C. C. A. 2d, 1922) cert. denied 260 U. S. 751; Barton v. United States, 267 F. 174, 175 hn 1, (C. C. A. 4th, 1920); Melendia v. People of the Virgin Islands, 29 F. 2d 741, hn 1, (C. C. A. 3d, 1928).

Kanner v. United States, 34 F. 2d 863, 866, hn 6, (C. C. A. 7th, 1929); Rickery v. United States, 160 U. S. 408, 422, hn 2; Allen v. United States, 164 U. S. 492, 499.

Winthrop, Military Law and Precedents, 2d Ed., 1920 Reprint, 575; CM 233817, Tillotson, 20 BR 149; CM 218393, Callan, 12 BR 49; CM 308766, Lattimer, 4 BR (A-P) 139, 4 Bull JAG 488.

Accordingly, the findings of guilty of Charge II and its specification and six months of the sentence to confinement at hard labor will be vacated. All rights, privileges, and property affected by the findings of guilty of Charge II and its specification and by that portion of the sentence vacated will be restored. In other respects, relief is denied.

E. M. BRANNON
Major General, USA

The Judge Advocate General

JAGY CM 324326

5 July 1950

MEMORANDUM OPINION

SUBJECT: Application for Relief under Article of War 53 in the Case of Private First Class Marcell F. Vozzella, RA 11163149 (CM 324326)

Applicant was tried by general court-martial on July 3, 1947, at Seoul, Korea, upon a charge and specifications alleging larceny on or about April 28, 1947, of a camera, value about $59 (Specification 1 of the Charge), and larceny on about May 20, 1947, of a camera case, value about $3 (Specification 2 of the Charge), in violation of Article of War 93. He was found guilty as charged and sentenced to dishonorable discharge, total forfeitures, and confinement at hard labor for one year. The reviewing 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 50%, and found legally sufficient to support the sentence. Vozzella was dishonorably discharged on April 7, 1948. He now presents an application for vacation of dishonorable discharge and total forfeitures and restoration of affected rights, privileges and property, under Article of War 53.

The applicant, through his attorney, Timothy J. Murphy, Esquire, of Boston, Massachusetts, contends as follows: that proof fails to support the findings because the evidence was circumstantial aside from the "illegally obtained oral confession", that Lieutenant Liewer, (immediate commander and accuser), did not advise accused of his rights under Article of War 24 before questioning him, and that the investigating officer first talked to Vozzella "off the record", and thereafter advised him

of his rights and asked questions bringing out the prior "off the record" statements; that the testimony of Lieutenant Liewer and Sergeant Soileau as to statements made by accused as well as that of Sergeant Armstrong (owner of the stolen camera case) as to a radio message concerning recovery of the case, was prejudicial; that Vozzella was not represented by competent counsel; that the law member failed to admonish the court that the burden of proof beyond a reasonable doubt rested with the prosecution; that the court inadequately considered the evidence before arriving at its verdict.

In support of the petition there were submitted a brief of counsel, letters of three residents of Massachusetts vouching for accused's good character, and accused's affidavit.

In the affidavit it is stated in substance that since returning to civilian life he has experienced difficulty in obtaining employment and is deprived of various benefits because of his dishonorable discharge, that he requested his special defense counsel to permit him to take the stand but was advised that it was not necessary, that he further requested his counsel to bring out matters in his behalf and to obtain a continuance in order to locate the Korean who allegedly sold him the camera, but he did not prevail, that the court deliberated less than five minutes before opening to announce its findings of guilty, and that he was not advised of his rights under Article of War 24 prior to interrogation by Lieutenant Liewer. He reiterates therein the statement set forth above, concerning asserted actions of the investigating officer, states that had he been asked more than a single question about the camera he would have added "the fact that [he] found it on the beach". He avers failure to obey Sergeant Soileau's orders and consequent difficulty with the latter and absence from a work detail in which witnesses said he participated.

The record of trial reveals that petitioner was defended by regularly appointed defense counsel and assistant defense counsel, and by an officer selected by him as his individual counsel.

The evidence disclosed that on about April 28, 1947, when Vozzella's unit was still at Su Saik, Korea, a Mercury II camera was taken from the unlocked wall locker of Private First Class Alexander Kulpa. He immediately reported the theft to the acting first sergeant, Technical Sergeant Soileau, who inquired of members of a detail working in Kulpa's barracks whether anyone had seen the camera. No one, including accused who was said to have been a member of this detail and present at the time, acknowledged having seen it.

On about May 20, 1947 after the unit had moved to Taechon, Korea, Technician Fourth Grade Thomas K. Armstrong discovered

that the camera case of his Mercury II camera was missing from his unlocked foot locker. He gave some other soldiers a description of the camera case as a means of identification. On or shortly after May 20, 1947, Private First Class Sealock saw accused with a Mercury camera and discovered that the latter was in possession of the camera case Armstrong had reported as missing. Vozzella was taken to his company commander, Lieutenant Liewer who questioned him in the presence of Sergeant Soileau and Technician Fifth Grade Ortz, (without advising him of the provisions of Article of War 24), as to how the camera case had been procured. Accused is quoted as having informed his commander that he "did steal it from Sergeant Armstrong".

It is in evidence that later that morning Kulpa and Soileau went to Vozzella's tent to ascertain ownership of the camera which had been seen in his possession, that accused first gave them a Korean camera he had in his footlocker, and then took a Mercury II camera from his wall locker and handed it to them. Kulpa identified this camera as his by its serial number. Applicant again was taken before his company commander, where he asserted that he had purchased the camera from a Korean at Su Saik. The loss and description of the camera had been announced in Vozzella's presence at about the time its owner first noted its absence.

Armstrong was permitted to testify concerning a radio message he had received after May 20, 1947 when he was at Su Saik stating that his camera case had been found. The record shows that the court then brought out the fact that Armstrong did not know the facts personally, but in this respect was relying on information contained in the radio message.

In the course of the direct examination of Lieutenant Liewer the defense moved unsuccessfully that his testimony as to accused's admission be stricken from the record because the latter had not been advised of his rights under Article of War 24. Sergeant Soileau previously had testified without defense objection that he had heard Vozzella say, in response to questions by Lieutenant Liewer, "I stole it [the camera case] off of him."

First Lieutenant Jameson testified that he made an investigation of the charges against accused, read Article of War 24 to accused, who acknowledged that he understood it, did not offer accused any inducement or hope of benefit if he were to make a statement, and talked to accused twice, once "officially”” and once "unofficially' ", that the first time accused was under oath and had been read the 24th Article of War, and the second time he "just called [accused] in to talk to [him] off the record" and did not swear him. He added that while under oath Vozzella told him that he had taken the case but not the camera and had ob

tained the camera by purchasing it from a Korean laundryman for $25. The investigating officer testified further that he arranged for a military police escort to accompany accused in an effort to locate the Korean, who allegedly sold the camera, but the attempt was unsuccessful.

It was stipulated that the value of the Mercury II camera was $45.45, and the value of the camera carrying case was $3. The accused was informed of his rights as a witness and elected to remain silent.

The only evidence presented by the defense was the testimony of Private First Class Ruggiero, unit barber, who stated that accused worked as a barber in his shop on the day of the alleged theft of the camera (Specification 1), that Vozzella arrived at work about 9:00 a. m., went to lunch from 11:45 a. m. to 12:45 p. m., and that during the afternoon the latter slept in a barber chair until about 4:00 p. m., at which time accused left the shop. The witness testified further that Koreans frequently attempted to sell American cameras to him.

There was evidence from a rebuttal witness for the prosecution that the unit headquarters, the barracks from which the camera was taken, and the barber shop were within about 125 yards of each other.

While serving the sentence of confinement, applicant stated in writing that he did not desire to be restored to duty.

The evidence as it relates to Specification 1 established that accused was in possession of a camera shown to have been recently stolen, and his possession thereof and failure to turn it in was not satisfactorily explained. Upon a showing of unexplained possession of recently stolen property, the burden of explanation is upon the defense.' The attempt to account for possession of an American camera by a claim of purchase from an unknown Korean, who could not be found is not convincing. The normal actions of a prospective purchaser would be to check the title before risking such a sum as the asserted price in the instant case. Therefore, the allegation of casual purchase from a vendor who should be suspect does not ring true and cannot be accepted. It is not surprising that the court and reviewing authority also rejected it. The evidence amply supports this finding of guilty, and is free of error injuriously affecting the substantial rights of the accused. Nothing has been discovered which would justify disturbing it.

1 Loftus v. U. S. 46 F. 2d 841, 845, hn 3, (C. C. A. 7th 1931); Donegan v. U. S. 287 F. 641, 647, hn 3, (C. C. A. 2nd, 1922), cert. denied 260 U. S. 751; Barton v. U. S. 267 F. 174, 175, hn 1, (C. C. A. 4th, 1920); Melendia v. People of the Virgin Islands, 29 F. 2d 741, hn 1, (C. C. A. 3rd 1928).