bag and contents taken from accused and held them in the organization supply room until the trial. He, and a corporal working under his supervision, marked each item with an "X" and at the trial the sergeant identified each piece of property by this mark as that taken from Melis the night of February 20, 1945. The officer appointed under Article of War 70 to investigate the charges against accused, testified that during the investigation petitioner admitted he took the "articles" from the ship after collecting them from one of the holds and openly removed them from the ship. The Port Supply Officer testified that prosecution's exhibits "A" through "H" (previously identified as those taken from accused) were either items of government issue for troops or goods sold in officers sales stores, although not issued or sold in the Ghent area, and also testified as to the approximate value of each item. At the trial, accused testified under oath, but neither admitted nor denied the theft. Applicant's conviction was not based upon illegally obtained evidence for it was entirely within the province of the two military policemen to stop military personnel, under such circumstances as existed when the stolen articles were discovered, and make a reasonable search of their persons or of articles under their control.1 It is known that, because of the widespread blackmarket activities in military supplies in occupied seaport towns such as was then true of the city where accused was apprehended, the military police were particularly alerted to question and hold all military personnel suspected of taking part in any such illegal activities. Melis was in uniform, walking down a street in Ghent at night, with a large bag on his shoulder, under such circumstances that the military police would have been derelict in their duty if they had not apprehended him and inspected his bag. The element of concealment in his recalcitrant reply to their proper inquiry lent credence to their justifiable suspicion. Whether searches and seizures are lawful depends upon their reasonableness. This was not a general exploratory search but an examination of a particular object which, at the time and place in evidence invited a wellfounded and reasonable suspicion of crime. "The Fourth Amendment does not denounce all searches or seizures, but only such as are unreasonable. * "The Fourth Amendment is to be construed in the light of what was deemed an unreasonable search and seizure when it was adopted, and in a manner which will conserve public in 1 CM 273879, Simpson, 47 BR 99, 110; Dig Op JAG, 1912-1940, p. 404, sec. 480 (4). terests as well as the interests and rights of individual citizens". (Italics supplied) Applying this criterion to the facts of this case, no other juridic conclusion can be reached than that the fruits of applicant's crime were legally obtained from him.' Furthermore, it has been held that the guarantees of the Fourth Amendment do not apply to United States citizens in foreign countries, where the exigencies of military necessity during wartime preclude the exercise of all the safeguards against unreasonable search and seizure afforded our citizens in peacetime and within this country.* Ownership by the United States of the property taken from accused appeared from testimony of the Port Supply Officer that all the articles charged as stolen, except the cigarettes, were items of issue by the United States Government, intended for the military service. Moreover, the defense stipulated that these articles were similar to those being discharged at Ghent on February 20, 1945 from the ship "Richard Lee," (which was in the control of U. S. Army personnel). There was testimony in addition, that while the "Lee" was discharging its cargo on that night, some unknown person in uniform went into hold number five and removed a bundle of clothing; applicant admitted to the investigating officer that he had collected some articles from the hold and taken them from the ship, upon which he had a duty assignment. The articles taken from accused were also put in evidence for the court's examination, and there was testimony that although they were "intended for the military service", they were not at that time issued to the troops nor for sale at officers sales stores in the area of Ghent. Under such circumstances it was a fair and natural inference for the court to draw that such articles were United States property furnished and intended for the military service thereof," which had been taken without authority from the hold of a vessel transporting war material to United States troops engaged in war. Implicit in a finding that government property has been stolen is one that the United States had suffered loss." Testimony of the military police who apprehended petitioner amply proved that the articles offered in evidence as exhibits for 2 Carroll v. U. S., 267 U. S. 132, 147, 149, hn 2 (1925); Husty v. U. S., 282 U. S. 694, 700, 701, hn 1, 2, 3, (1931); Richardson v. Zuppan, 81 F. Supp. 809, 813, hn 4, 5, (D. C. M. D. Pa., 1949). 3 Cf Furlong v. U. S. 10 F. 2d 492, 493, 494, hn 3, (8th Cir. 1926). • United States v. Best, 76 F. Supp. 857, 861-5, hn 4, 11, 13, 16, (D. C. Mass., 1948). CM 323083, Davis, 72 BR 23, 31; CM 307143, Klingensmith, 1st Ind., 60 BR 375, 379; CM 319591, Pogue, 68 BR 385, 398, 399, 400; Pettit v. State, 229 Pac. 1036, hn 1 (Ariz); Lanahan v. State, 2 S. W. 2d 55, hn 3, (Ark); Smith v. State, 118 N. E. 954, hn 2, 3. (Ind.) LRA 1918 D. 688; 32 Am. Jur. sec. 138, p. 1050, 1051 and sec. 146, 1060; Subpar. 150% of the Manual for Courts-Martial, U.S. Army, (1928). 6 • Subpar. 150i of the Manual for Courts-Martial, U.S. Army, 1928. the prosecution at the trial were those taken from him on the night of the offense." The evidence also fully sustains the court's findings, as approved by the reviewing authority, that there was proof of value of the property taken." The record of trial reveals that the defense extensively crossexamined every witness for the prosecution but one, and Melis voluntarily stipulated to the facts sought to be proved by that witness. In only one instance was an objection by the prosecution to questions by the defense on cross-examination upheld. There is no indication that this was an incorrect ruling. A similar question had been previously answered. Limitation of pointless protraction of cross-examination is not error." Other such objections by the prosecution were overruled, and these rulings of course, favored the petitioner, forming no basis for complaint. Applicant stated at the outset of his trial that he desired to be defended by the regularly appointed defense counsel and assistant defense counsel. Examination of the record of trial discloses that defense counsel performed their duties loyally, intelligently, diligently and competently.10 Little weight can be given to a complaint after conviction, of the proficiency of deliberately selected counsel without particularization as to any specific acts of incompetency." It has been said that it is a favorite plan of those convicted of offenses to criticize their counsel." It cannot be observed that any coercion was practiced upon accused, either before or during his trial. There was no requirement in the law or regulations that counsel be furnished him during the pretrial investigation.1 * * 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 7 United States v. S. B. Fenicle & Co., 136 F. 2d 413, 415, hn 3, 4, (2d Cir. 1943); Pasadena Research Laboratory v. United States, 169 F. 2d 375, 382, hn 11, (9th Cir. 1948); 32 CGS, sec 607, p. 457, 458; Lastice v. Kuehner, 283 N.W. 122, 125, hn 8, 9; 204 Minn. 125; State v. Hays, 162 N.W. 311, hn 1, 38 S.D. 46. 8 CM ETO 9342, Bells, 20 BR ETO, 313, 316; 52 CJS, sec 976, p. 912, 913, sec 133 b, p. 970. Cate v. Good, 181 F. 2d 146, 149, hn 9, (3d Cir. 1950). 10 Cf United States ex rel Webber v. Ragen, 176 F. 2d 579 (CA 7th, 1949). 11 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, (4th Cir. 1947); Moss v. Hunter, 167 F. 2d 683, 684, hn 1, (10th Cir. 1948), cert. denied 334 U. S. 869. 12 Diggs v. Welch 148 F. 2d 667, hn 1, 2, 5, (App. D.C. 1945) cert. denied 325 U.S. 889; Sanford v. Robbins, 115 F. 2d 435, hn 13, (5th Cir. 1940). 13 Subparagraph 35a of the Manual for Courts-Martial, U.S. Army, 1928; Article of War 70, 10 U. S. C. 1542. JAGY CM 301239 2 August 1950 MEMORANDUM OPINION SUBJECT: Application for Relief under Article of War 53 in the Case of Private Jerome M. Ciullo, 36570676 (CM 301239) Applicant was tried by general court-martial at Paris, France, on March 16 and 17, 1945, and found guilty of deserting the service of the United States on or about December 23, 1944, terminated by apprehension on or about January 28, 1945, in violation of Article of War 58, and murder (omitting "with premeditation"), of Alfreda "Lola" Cartier, in violation of Article of War 92 and sentenced to dishonorable discharge, total forfeitures, and confinement at hard labor for life. The reviewing authority approved the sentence. After a board of review in a branch office of The Judge Advocate General with the European Theater of Operations, constituted under Article of War 5012, held the record of trial legally sufficient, the sentence was ordered executed. Accused's sentence to confinement has been reduced to 28 years through clemency action. Petitioner now presents an application for relief under Article of War 53 specifically requesting a new trial and vacation of sentence. He contends that the evidence presented at the trial was prejudicial because it was compiled by the French civil authorities, that the photographic evidence was prejudicial in that it lacked perspective or depth, that the prosecution referred to a letter from the deceased requesting a friend to bring her a revolver as evidencing a threat by accused to the life of the deceased without introducing the letter in evidence, and that at most he should have been tried under Article of War 93. He expresses a willingness to submit to lie detector or truth serum tests. Appended to the petition is a copy of a letter, signed “Lola”, dated January 16, 1945, assertedly from Miss Alfreda Cartier to Miss Jean Clavier. In substance the letter requests Miss Clavier to bring the latter's revolver to her. It adds that she is living with an American as his wife. The record of trial reveals that on December 23, 1944, the accused took all his belongings, left his organization without leave, and went to Paris to join a black market gang. Shortly after forming this association, he began living with the asserted murder victim, a known prostitute. Ciullo customarily slept with a P-38 pistol, as well as an American .45, under his pillow. About 10 a.m. on January 18, 1945, while the applicant was in bed with the woman, who was apparently asleep, (although accused testified otherwise) she was shot in the forehead between the eyes and instantly killed by a bullet discharged from a pistol then in the hands of her companion. Ciullo testified that he pulled a pistol, which contained a loaded clip, and with whose operation he was familiar, from under his pillow, pointed it about the room, cocked it drawing back the hammer, and pulled the trigger several times. He then pointed it at the head of Miss Cartier, who laughingly told him that she was not afraid. After he had directed it at her head several times, additionally, he pulled back the extractor, thereby inserting a cartridge in the chamber, and pulled the trigger, shooting the woman between the eyes. Following this, he packed his belongings, took her money, and made his escape. He was apprehended by the military police about ten days later. Private Suggs, a member of the gang, testified that the accused had slapped the deceased about five days prior to the homicide. He further stated that the petitioner was "quick-tempered" and that he suggested to applicant that if he did not want the deceased around, he should let her go. In his pre-trial statement accused stated that one "Papa Russky" was in the room while he was pointing the gun at the deceased, and that the victim asked Ciullo to point the pistol at her. "Papa Russky", however, testified that while he was in the room the woman was asleep and that he did not hear the trigger pulled or any conversation between the deceased and the accused. On the stand the applicant shifted from his pre-trial position, testifying that it was not until after he had pulled the trigger several times and the deceased had said to point it at her that "Papa Russky" entered the room. He further testified that the deceased was jealous of him and that they had quarreled. In narrating the details of his flight after the shooting, he referred to "Lola's murder", then corrected himself. The essence of his defense was that he was not thinking when he pulled the extractor, which he knew would load the weapon, and that the shooting was unintentional and accidental. The allied papers reveal that an investigating officer was appointed to investigate the incident in accordance with Article of War 70. His report of investigation included a report of an investigation of the matter by agents of the Criminal Investigation Detachment of the Army, statements by members of the French police, French civilians, and members of the American Army, and various photographs and documents. There is nothing in the allied papers or the record of trial to indicate that the |