od of confinement at hard labor was reduced to three and one-half years.

The petitioner now asks relief under Article of War 53, requesting that his dishonorable discharge be vacated, and that instead he be given an honorable discharge. He urges, "I was not guilty of this violation, because I used neither force, violence, fear, nor did I steal this money. I was not guilty of violating 93rd Article of War, but merely accepted an innocent bribe." No new evidence has been submitted in support of this petition.

The uncontroverted evidence reveals that when the accused and Private First Class Lapio were on military police patrol duty in Leghorn, Italy, on April 29, 1947, they accosted a civilian, one Giuseppe Graziani (the complaining witness), and requested exhibition of his identification. They ordered Graziani to accompany them to a nearby structure used as an American military establishment, and while going there another civilian came along and began talking with Graziani, so this individual was taken along. Once inside this structure, Harris and Lapio searched the civilians, and found that Graziani had approximately 48,000 Italian lire in his possession and the other had 5,000 lire. Thereupon they released the latter, who had commenced to sob, but accused Graziani of black-market operations. The record discloses that while Graziani was being held, Harris toyed with his pistol, snapping it, although he did not aim it at Graziani nor in any particular direction. At one time Harris relieved the civilian of his money after forcing him to stand against a wall, but later returned it. Lapio informed him that Harris would only release him if 20,000 lire were paid. The accused and his co-defendant next took the prisoner from the building, forcing him to accompany them to another building down the street. Shortly thereafter, during the temporary absence of Lapio, Graziani placed 20,000 lire, the approximate equivalent of $49, in the pocket of his own jacket, and handed the garment to applicant, who went with it alone into a nearby latrine; there Harris removed the money from the jacket and then returned the clothing to its owner. Graziani was almost immediately thereafter released by the two military policemen and told to leave town; after visiting an Italian police station, he complained to the American military authorities. He testified that he surrendered his property because he feared "they were going to hit me or going to shoot me," and that he was trembling. That evening the company commander of applicant's unit, upon direction of the battalion commander, searched Harris and Lapio. A portion of the money taken was found in the possession of the former.

It is apparently the contention of the petitioner that the money was voluntarily given to him by Graziani, in the nature

of a bribe for release from the temporary restraint, and that thus the offense would be extortion or accepting a bribe. However, the above evidence indicates that the money was secured as the result of duress produced by fear of physical harm from applicant and his companion.

The offense of robbery consists of "the taking, with intent to steal, of the personal property of another, from his person or in his presence, against his will, by violence or intimidation." That personal property of the victim was taken from his person is clear from uncontroverted evidence, and it is unquestioned that the applicant had no intention of returning the money to the victim. From evidence of the use of violence or intimidation in the acquisition of property, it may be inferred that the taking was against the will of the person from whom it was secured." If the victim is intimidated by threats and then goods are thus acquired, it is not necessary that there be any actual violence. Intimidation, in this connection, means force, not necessarily actual or direct, but that which is exerted upon the person robbed, by operating upon his fear of injury to person, property, or character. No matter how slight the cause creating the fear may be, or by what other circumstances the taking may be accomplished, if the transaction is attended by such circumstances of terror, for instance threatening by word or gesture, as in common experience are likely to create a reasonably well-founded apprehension of present or future danger and induce one, while this feeling still exists, to part with his property for the sake of his person, the victim is put in fear."

From the evidence that applicant removed his pistol from its holster, snapped the trigger, and toyed with it in the presence of the trembling victim, coupled with the clandestine, suspicious, and incriminating actions of the accused in obtaining the lire, and the other evidence detailed above, the court was justified in finding that Graziani was placed in fear to the extent that delivery of his money to Harris was involuntary and wholly the result of intimidation."

***

1 Paragraph 149f of the Manual for Courts-Martial, U. S. Army, 1928.

2 46 Am. Jur. 150, Sec. 22.

a Norris v. United States, 152 F. 2d 808, 809, hn 3, (C. C. A. 5th 1946), cert. denied 328 U. S. 850; paragraph 149f of the Manual for Courts-Martial, U.S. Army, 1928.

4 Montsdeca v. State, 84 Fla. 82, 93 So. 157, 159, hn 7, 27 A. L. R. 1291 (1922); State v. Parsons, 44 Wash. 299, 87 Pac. 349, 350, hn 1, 2, 120 Am. St. Rep. 1003 (1906); 46 Am. Jur. 146, Sec. 16; Paragraph 149f of the Manual for Courts-Martial, U. S. Army, 1928.

5 CM 307033, Kivler, 60 BR 81, 88 (1946); 32 Am. Jur. 925, Sec. 35; Wharton's Criminal Law, 12th Ed., Vol. 2, p. 1472, par. 1155; Bishop's Criminal Law, 9th Ed., Vol. 2, p. 615, par. 807 (2).

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

JAGY CM 246905

17 July 1950

MEMORANDUM OPINION

SUBJECT: Application for Relief under Article of War 53 in the Case of Second Lieutenant Stanley C. Bohlin, 0-1314992 (CM 246905)

Applicant was tried by general court-martial at Fort Ord, California, on December 21, 1943 and found guilty of borrowing money from an enlisted man, in violation of Article of War 96, and of dishonorable failure to pay a debt to an enlisted man, in violation of Article of War 95. He was sentenced to dismissal and total forfeitures. After the reviewing authority had approved the sentence and forwarded the record for action under Article of War 48, a board of review, constituted under Article of War 502, held the record of trial legally sufficient to support the findings and sentence. The President of the United States remitted the forfeitures, confirmed the sentence, and ordered it to be carried into execution. Bohlin ceased to be an officer of the Army on March 12, 1944.

He now presents an application for relief under Article of War 53. He admits that he borrowed money from an enlisted man but maintains that he was unaware that this was a court-martial offense. He contends that he was not guilty of failing to repay the debt because he had attempted to make arrangements for payment, but received no cooperation from the person to whom he owed the money.

The record of trial reveals that accused pleaded guilty to borrowing money from an enlisted man, in violation of Article of War 96. From evidence adduced at the trial it appears that on September 7, 1943, applicant borrowed three hundred dollars from one Corporal Joseph LaPlace, to pay expenses and buy a car, with the understanding that the money was on its way to the accused from his home and that he would repay it within five or six days, that upon learning that Bohlin was transferred to a port of embarkation, LaPlace asked for payment prior to his departure,

that petitioner promised to send the money after reaching the port, but failed to do so, that two and a half months later he had made no effort to pay and apparently had not repaid the money at the time of submission of the petition here involved.

Accused testified at the trial that he borrowed the money to buy a car and pay debts incurred due to the illness of his wife and child, that he had been unable to repay the money because of expenses involved in moving his family, that he intended to repay Corporal LaPlace as soon as he could get the money, that on November 25, 1943, he made an allotment of $50 per month payable to LaPlace, that he did not know or realize that it was improper to borrow money from an enlisted man, and that he did not know that an allotment may not properly be made on an officer's pay for the purpose of paying a debt.

It further is ascertained from the record that the reason he became interested in making an allotment was because he had been officially directed to pay the corporal $50 per month for six months, beginning December 1, 1943. There is no indication in the file that Bohlin actually made an allotment to LaPlace although there is a suggestion that he unsuccessfully attempted to do so after being ordered to pay the soldier as stated above.

"The mere act of an officer borrowing money from an enlisted man is an offense under A. W. 96 *

* 1 *

In view of Bohlin's plea of guilty to the offense of borrowing money from an enlisted man, and the uncontroverted evidence that he did do so, further discussion of this specification would be superfluous."

"Dishonorable neglect to pay debts is a violation of A. W. 95. Neglect on the part of an officer to pay his debts promptly is not of itself sufficient grounds for charges against him. Where the nonpayment amounts to dishonorable conduct, because accompanied by such circumstances as fraud, deceit, or specific promises of payment, it may properly be deemed to constitute an offense.

The court was justified in inferring from applicant's action in ignoring not only his agreement to pay within the time specified, but also subsequent promises, in spite of having received, in the interim, his monthly pay for several months, when coupled with his untrue statement at the time of incurring the obligation that funds were enroute, that his original promise to repay was made with a false or deceitful purpose not to fulfill, and that the failure to satisfy the indebtedness was dishonorable and dis

1 Dig. Op. JAG, 1912-40, p. 341, CM 122920 (1918), CM 130989 (1919).

2 Kercheval v. United States, 274 U. S. 220, 223; 71 L. Ed. 1009; United States v. Colonna, 142 F. 2d 210, 213, hn 6 (C. C. A. 3d, 1944).

3 Dig. Op. JAG, 1912-40, p. 344, CM 121207 (1918).

honest. If it had been shown that petitioner had voluntarily made, or had of his own volition attempted to make, an allotment, (or other arrangement to pay), in a timely manner within a reasonable period after he had secured the money, that would be evidence that he was acting in good faith and not dishonorably; however, no such exculpatory facts are discovered. He only took steps to pay when he was compelled to do so when his asserted effort to make an allotment was found to be unavailing, because not authorized by the regulations; he then failed to adopt the obvious expedient of sending the money direct to the corporal, apparently abandoning further efforts to extinguish the debt.

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

JAGY Sp CM 914

17 July 1950

MEMORANDUM OPINION

SUBJECT: Application for Relief under Article of War 53 in the Case of Sergeant Anthony J. Sittarich, RA 17216122 (Sp CM 914)

Petitioner was tried by a special court-martial at Vienna, Austria, on October 18, 1949 and found guilty of wrongfully, unlawfully, and with intent to derive personal gain, during a designated period of time, falsifying official records (Charge I, Specification 1), and of three offenses of falsifying official records. (omitting intent to derive gain) (Charge I, Specifications 2, 3, and 4), in violation of Article of War 96. He was sentenced to be discharged from the service with a bad conduct discharge, to forfeit $70.00 of his "pay for six months", and to be confined at hard labor for six months. The reviewing authority approved the findings, shortening the period of time alleged in Specifications 1 and 2, and reduced the forfeiture to $35.33. A board of review constituted under Article of War 50, held the record of trial legally sufficient to support the approved sentence, which was then ordered executed. The bad conduct discharge was executed on March 1, 1950 and Sittarich has been released from confinement.

• CM 329496, Deligero, 78 BR 43, 49 (1948).