It is noted, anent the applicant's complaint that the court was not informed by the law member, in open court, of the prosecution's burden of proof, that at the time this case was tried there was no requirement that such an explanation be made. Even if the court returned its verdict speedily, as petitioner asserts, this fact alone would not justify a conclusion that the evidence was not adequately weighed. The facts were well presented and sifted in open court, they were not difficult and the trial not extended. It is quite probable that the court encountered no difficulty in intelligently and honestly determining the instant issues and that no differences of opinion of a delaying nature were encountered in closed session." Other points raised by applicant relate primarily to Specification 2. The value of the camera was shown to have been less than $50 and more than $20; the punishment adjudged by the court was within the maximum permissible for conviction of the offense proved under Specification 1 and the Charge." Discussion of alleged errors with respect to Specification 2 is unnecessary in view of the well-settled rule that where the findings of guilty of one charge and one specification thereunder are legal and support the sentence adjudged, the sentence will be permitted to stand, even though findings of guilty of other specifications and charges may not be good.* The record shows that defense counsel diligently protected the interests of accused and served him loyally, intelligently and with professional skill; counsels' representation was of such character as to preserve the essential integrity of the proceedings as a trial in a court of justice." It has been said that it is a favorite plan 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." * 2 CF U. S. ex rel Thompson v. Nierstheimer, 166 F. 2d 87, 88, hn 1, (C. C. A. 7th 1948), cert. denied 334, U. S. 850. 3 Paragraph 104c, Manual for Courts-Martial, U. S. Army, 1928 Whitfield v. State of Ohio, 297 U. S. 431, 438, 80 L. Ed. 778, 783; Claassen v. United States, 142, U. S. 140, 146, 35 L. Ed. 966, 968, 12 S. Ct. 169; Paragraph 104c, Manual for Courts-Martial, U. S. Army, 1928. U. S. 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. denied 325 U. S. 889. 7 Adams v. Hiatt, 79 F. Supp. 433, 434, hn 3, (D. C. M. D. Pa. 1948); Morton v. Welch, 162 F. 2d 840, 842, hn 3, (C. C. A. 4th, 1947); Moss v. Hunter, 167 F. 2d 683, 684, hn 1, (C. C. A. 10th 1946), cert. denied 334 U. S. 869). Good cause for the granting of relief under Article of War 53 does not appear; accordingly, the petition will be denied. E. M. BRANNON The Judge Advocate General JAGY CM 312195 5 July 1950 MEMORANDUM OPINION SUBJECT: Application for Relief under Article of War 53 in the Case of Private George H. Staub, 42203459 (CM 312195) Applicant was tried by general court-martial at Fort Sill, Oklahoma, on February 19 and March 18, 1946. He was found guilty of absence without leave from December 18, 1945 to January 3, 1946, in violation of Article of War 61 (Specification 2, Charge I); of forgery of a check, in violation of Article of War 93 (Specification of Charge II); of wrongfully representing himself to be a noncommissioned officer (Specification 1); and of wrongfully wearing the insignia of such noncommissioned officer (Specification 2), in violation of Article of War 96 (Charge III); he was found not guilty of absence without leave from May 7, 1945 to May 12, 1945 (Specification 1, Charge I). His sentence was dishonorable discharge, total forfeitures, and confinement at hard labor for three (3) years. The reviewing authority approved and ordered it executed, but suspended execution of the dishonorable discharge until accused's release from confinement. Pursuant to Article of War 5012, the record of trial was examined and found legally sufficient to support the sentence. On November 19, 1946 the dishonorable discharge was executed. By subsequent clemency action the sentence to confinement was reduced to two years and eight months. Accused was released from confinement on February 14, 1948. He now presents an application for relief under Article of War 53, requesting a “New Trial [or] Suspension of Discharge previously executed". In his application under Article of War 53 accused asserts that the court was without jurisdiction because, he urges, he had not been legally inducted into the Army, ascribing as reasons therefor that he had not taken the oath of allegiance, that he was a parolee from a penal institution, that he had a 4-F draft board classification, that he had four dependents, and that he previously had been dishonorably discharged from the Army, which discharge had not been waived prior to his induction. He also contends, in effect, that he was twice tried for the same offenses by separate courts-martial, and that he was denied defense counsel of his own choice. The record of trial reveals that on October 29, 1945 accused, then a private assigned to the Patients' Detachment, 1802 Station Complement Unit, Borden General Hospital, Chickasha, Oklahoma, falsely represented to members of the Personal Affairs. Office of that hospital, both orally and in writing, that he was a noncommissioned officer (Specification 1, Charge III). Again it was in evidence that on November 17, 1945 at the Mayo Hotel, Tulsa, Oklahoma, he falsely represented, both orally and in writing, that he was a noncommissioned officer and he wore the insignia appropriate to that grade (Specification 2, Charge III). Also on November 17, 1945, at the same hotel he executed a bill of exchange, or draft, drawn on the "Army Emergency Relief", payable to the Mayo Hotel, which he signed in his own name, as drawer (Specification, Charge II). Upon his assurance that he was authorized to draw on the Army Emergency Relief Fund, the hotel officials cashed the instrument, accused receiving $175. Applicant was not authorized to draw against the fund, and the draft was returned unpaid to the Mayo Hotel on November 23, 1945 by the bank through which it had been negotiated. The hotel was not reimbursed for the amount it had paid Staub. On December 18, 1945, according to the evidence, accused absented himself without proper authority from his station, Borden General Hospital, and remained absent until he returned to military control on January 3, 1946 (Specification 2, Charge I). He testified that he had received punishment under Article of War 104 for the absence alleged in Specification 1 of Charge I. The report of a psychiatric examination of accused, introduced in evidence by stipulation, stated that accused possessed "constitutional psychopathic inferiority" and that a "severe psychopath" is not adaptable to military service. At the outset of the trial applicant entered a special plea to the jurisdiction of the court on the asserted ground that he had not been legally inducted into the Army. Appearing as a witness for the limited purpose of establishing that allegation, he testified in substance as follows: He was ordered to report to his local draft board for induction on April 11, 1945; after being accorded a hearing before the board, he was classified for immediate induction. He did not question the action of the board, but when he reported to the induction station, he refused to take the oath of induction and in formed the officer in charge that he had a dishonorable discharge from a previous enlistment. Upon cross-examination he admitted that he subsequently was detailed and performed duties as a soldier and that he received pay and dependency allowances and had applied for government insurance. The plea to the jurisdiction was overruled. At the conclusion of the presentation of evidence by the prosecution, the defense renewed the plea whereupon the case was continued by the court, and the record of trial, so far as the proceedings then had been completed, was forwarded to the reviewing authority pursuant to paragraph 64a, Manual for Courts-Martial, U. S. Army, 1928. The record was returned to the court, which overruled the plea, and the trial was completed on March 18, 1946. When the court reconvened on March 18, 1946 Captain Winkenwerder and First Lieutenant Willbrand appeared as defense counsel and assistant defense counsel respectively, at which time accused stated that he elected to proceed with such officers as defense counsel and that he did not desire to introduce individual counsel, either to act with or instead of the above officers. Captain Winkenwerder, originally detailed as assistant defense counsel, had been excused from the first session of the court by the appointing authority with the consent of applicant; prior to the reconvening of the court he was detailed as defense counsel in lieu of Captain Carter, the originally appointed defense counsel who had been present at the first session of the court. The record of trial does not indicate that accused requested the continued services of Captain Carter or that he was denied counsel of his choice. During the second session of the court, defense counsel adduced evidence with regard to the unauthorized absence alleged in Specification 1, Charge I, the offense upon which the court later returned a finding of not guilty, and also introduced the report of a psychiatric examination of accused. Records of the Selective Service System pertaining to accused disclose that he requested immediate induction on March 3, 1945, was classified 1-A on March 14, 1945, and was ordered to report for induction on April 11, 1945. Pursuant to the order of his local draft board, accused reported for induction and, as shown on the Report of Physical Examination and Induction (DSS Form 221), which bears what purports to be his signature and certifies him as qualified for General Military Service, submitted to both mental and physical examination and fingerprinting. The Service Record and personnel file of accused reveal that upon completion of the foregoing, he was assigned to duty as a soldier and performed the duties thus required of him, that he accepted pay and made allotments, and that he repeatedly used the hospital facilities available only to members of the armed forces. At the trial, he himself urged that he was punished under Article of War 104 at one time, a procedure for military personnel which requires consent of accused as a prerequisite. It is concluded that the applicant was legally inducted into and was a member of the military service and that the courtmartial which tried him had jurisdiction over his person and over the offenses of which he was convicted.1 The procedure followed by the court and the reviewing authority pursuant to paragraph 64a, Manual for Courts-Martial, U.S. Army, 1928, was not improper. The completion of the trial on March 18, 1946 was but a continuation of the original proceedings (with no new court members), and in no way constituted a second trial of the accused for the same offenses. It does not appear that accused was denied defense representation of his own choice, but on the contrary, he specifically affirmed the selection of his counsel. He was charged, among other things, with the offense of forgery, in violation of Article of War 93 (Charge II and its Specification). The evidence shows that accused drew on the "Army Emergency Relief" what was in effect a draft to which he signed his own name, (using a fictitious description as a noncommissioned officer, however), and that as a result he fraudulently obtained from the Mayo Hotel, the payee named therein, the sum of $175. Under the circumstances in this case, the actions of applicant in signing his own name to an instrument, but without the authority to draw which he asserted he possessed, even though done for, the purpose of defrauding, whatever other crime it may be, is not forgery nor an offense included in the one charged. There was therefore a fatal variance between the pleadings and the proof, and the findings of guilty of forgery, in violation of Article of War 93, cannot be sustained." This is true notwithstanding the undisputed evidence that the money was fraudulently obtained, for even a knave is protected in prosecutions under legislative enactments authorizing punishments for different species of fraudulent acts 66* * * * * "Whatever his 1 In re Grimley, 137 U. S. 147, 153 et seq; Hibbs v. Catovolo, 145 F. 2d 866, 867, (C. C. A. 5th, 1944), cert. denied 325 U. S. 854; Mayborn v. Heflebower, 145 F. 2d 864, 865, 866, hn 1, 2, 3, (C. C. A. 5th, 1944); Curia v. Pillsbury, 54 F. Supp. 196, 199, hn 2, 3, (D. C. S. D. Ohio E.D. 1944); McFarland v. Zuppman, 82 F. Supp. 526, 528, hn 2 (D. C. M. D. Pa., 1949). 2 see Greathouse v. United States, 170 F. 2d 512, 514, hn 2, 3, 5, (C. A. 4th, 1948); 41 A. L. R. 229, 231, 247 et seq: 46 A.L.R. 1529; 51 A.L.R. 568; CM 264831, Turner, 42 BR 329, 338; CM 278971, Talbott, 52 BR 79, 82; CM 323022, Walker, 72 BR 5, 7; CM ETO 14632, Lang, 28 BR (ETO) 125, 144; paragraph 149j of the Manual for Courts-Martial, U. S. Army, 1928; cf. United States v. Tommasello, 64 F. Supp. 467, aff'd. 160 F. 2d 348. * Goucher v. State of Nebraska, 204 N. W. 967, 968. |