failure to connect Corporal Lagodich with the conspiracy was a fatal variance between the charges and the proof; (17) that the admission into evidence of activities of French and Helfenbein in 1946 and 1947 was prejudicial and inflamatory and influenced the court; (18) that the trial judge advocate was allowed to lead witnesses throughout the entire trial; (19) that the stipulation entered into between accused and trial judge advocate as to the specific vehicle described in the specifications, was improvident, and the government should have been required to prove this fact; (20) that defense counsel were inadequate and incompetent, because of the stipulations made, and because of counsel's asserted failures to object to allegedly prejudicial evidence; (21) that the court's findings of guilty of Charge III and not guilty of Charge II are inconsistent and vitiate the entire judgment; (22) that unfair disposition was made of the case of accused, because other members of the conspiracy received no punishment. The record of trial discloses that the following evidence was adduced at the trial: that on about November 12, 1948, Corporal Maurice French, a member of the 7761st AGRC Depot Company, was driving a United States Army tractor-trailer from Frankfurt, Germany, to Paris, France, on an authorized trip; that he was halted by military police and upon examination of the load on the truck, twenty-eight large boxes, containing pencils, were discovered; that the pencils were not military property and no one had properly authorized their transport in a military vehicle; that they had not been declared by the corporal to the French custom officials when he crossed the border from Germany into France. From the record it also is ascertained that accused was the motor officer of the 7761st AGRC Depot Company at the time of this incident and had been assigned to this duty several months before the discovery of the boxes of pencils. Several written stipulations signed by prosecution, defense and applicant were introduced into evidence revealing the following pertinent facts: that the tractor-trailer driven by French was property of the United States government and valued at over fifty dollars; that the corporal was carrying government property on his truck from France to Germany on November 3, 1948, and that he did have some United States Army property on his truck on the return trip from Germany to France on November 11 and 12, 1948; that if one Corporal Taylor were present he would testify that he inventoried the 28 boxes finding over three hundred thousand lead and crayon pencils therein; and that the pencils were not the property of the United States government, the real ownership being unknown. Corporal French testified that he had consulted with his counsel and elected to testify that he became acquainted with applicant when the latter became motor officer of the unit in January, 1948, that his official duty was to haul government supplies to and from Paris, France, to Germany, that one Lieutenant Helfenbein was motor officer prior to Lieutenant Cohan and French hauled boxes from Frankfurt to Paris for him, that he continued hauling boxes for Lieutenant Cohan at the latter's request after Lieutenant Cohan became motor officer, that he loaded the boxes at a civilian establishment in Frankfurt, that he was paid from 15,000 to 70,000 francs for each delivery in Paris, that after accused succeeded Lieutenant Helfenbein as motor officer French wished to quit but Cohan and Helfenbein told him "not to be foolish", and that he had orders from Lieutenant Cohan each time that he hauled boxes. The prosecution offered in evidence a letter granting immunity to Corporal French but an objection thereto by the defense was sustained. At a later time in the trial the petitioner introduced this document. Two pre-trial statements of accused were introduced into evidence. In substance, they contained the following: that applicant was motor officer of the Depot after Helfenbein was relieved to be returned to the United States, that Helfenbein and two Frenchmen made all arrangements for the pencils and gave the instructions to the drivers, that Cohan knew that the boxes contained pencils, that about ten or twelve loads were brought from Germany, that he received from 25,000 to 100,000 francs after each trip, that when loads were brought from Germany he had them transferred to another truck and they were delivered to a place unknown to him, that two drivers, French and Lagodich, were involved in these transactions, and that sometimes he was present when Helfenbein or the Frenchman gave instructions to the driver. During the time these statements were being taken, a French police inspector appeared at the office, but not by prearrangement. Accused had been told that under American-French agreement, the French Government would have priority in case of a violation of the French custom law. Cohan's rights as a witness were explained to him and he elected to testify only on the admissibility of his pre-trial statements. He contended that he was apprehensive of being turned over to French authorities because of the appearance of the French inspector and made the statements for that reason, although he does not assert that anyone indicated such a possibility and in fact swore that the American officer questioning him stated: "We have got priority over him now." On further questioning, Cohan admitted that he was informed of his right to remain silent before signing either statement. Relative to the contentions of the applicant, that the court was not sworn prior to challenges of its members, that the trial judge advocate recited the nature of the charges before the court was sworn, that there was no inquiry into the competency of the interpreter, that the law member did not advise the court of the presumption of innocence and the burden of proof, and that the court should have made inquiry as to prejudice of its members, it should be noted that the trial occurred prior to the effective date of the Manual for Courts-Martial, U. S. Army, 1949, and the Manual for Courts-Martial, U. S. Army, 1928, was in effect at that time. Some of the asserted requirements appear in the later manual but none in the former. The above contentions have no support in the law and are not meritorious. It affirmatively appears in the record of trial that the court made inquiry as to possible prejudice of any of its members. Moreover, applicant's "expressed satisfaction with the court as constituted was a clear waiver of any objection to its personnel." There was no challenge for cause by either party, hence no occasion for swearing any member at that time. The manual provided that after "the proceedings as to challenges are concluded, the members of the court * are sworn". It was both logical and proper that the prosecutor should state the general nature of the charges before the time for challenges, hence before the swearing of the court. No objection to the performance of the interpreter has been recorded to this date nor is there evidence to support such a complaint, in view of the authenticated record. Furthermore, the fact that the defense counsel who had been excused at the outset of the trial, at accused's request, had acted as attorney for a witness is not a matter which could be prejudicial to any interest of the accused; nor is a witness required to make a specific request in order that he be allowed to testify. Admission of evidence of previous similar activities involving French, applicant's co-conspirator and agent in the instant occurrences, as well as Cohan's predecessor as motor officer could not have improperly affected accused. It indicated a course of conduct, to which he fell heir in which a government truck was furnished on several occasions to transport private goods commercially. It 1 Bishop v. U. S., 197 U. S. 334, 340, hn 3. Paragraph 61, Manual for Courts-Martial, U. S. Army, 1928. 3 P. 262, Manual for Courts-Martial, U. S. Army, 1928. showed the criminal intent, guilty knowledge and design of Cohan and a course of conduct indicating a business rather than an isolated instance." Under the law, accused cannot be heard to complain that another person, implicated with him in the commission of an offense, was granted immunity and offered as a witness against him. This may react to his misfortune but it is a risk he runs when he undertakes a crime. The practice is well recognized in criminal jurisdictions, and the legality of federal statutes granting such immunity has been upheld in the United States Supreme Court." Nor is it apparent how Cohan has been injured by the failure to punish a fellow conspirator. Petitioner cannot now complain that his own proffered evidence (the letter granting immunity) improperly influenced the court. One may not nurse an expected error along to the point of reversibility and then complain of a situation which he, by his silence, has helped to create." Nor is a failure to connect all the conspirators named in a specification fatal to a charge of conspiracy, as contended by accused." Applicant contends that defense counsel were inadequate, incompetent, and improvident in agreeing to certain stipulations. Examination of the documents discloses that part of what they contained was of benefit to Cohan, and all of it was readily susceptible of proof without the stipulations. The record discloses that accused introduced two special defense counsel to represent him, Mr. Frank Schwartz, and Captain John E. Stone, then a member of the Judge Advocate General's Department. It has been 'Subparagraph 112b, page 112, Manual for Courts-Martial, U. S. Army, 1928; CM 130239 (1919) Dig Ops JAG 1912-40; CM 192973 (1930) page 202, Dig Ops JAG 1912-40; cf. 15 CJS pp. 1141-1143. 15 Am. Jur. 17-20, Secs. 321-324. Hale v. Henkel, 201 U. S. 43, 67, 68, 69, 50 L. Ed. 652; Nelson v. U.S., 201 U. S. 92, 116, 50 L. Ed. 673. U.S. v. 5 Cases, 179 F. 2d 519, 523, hn 13 (2d Cir. 1950). 8 The facts in Brooks v. U. S., 164 F. 2d 142, 143, hn 3 (5th Cir. 1947), cited by petitioner distinguish it from the instant case. In the Brooks case, defendant and 13 others were charged in a single count with one conspiracy; 12 of them were tried and convicted, but the evidence showed several conspiracies not all of which involved the same persons, yet failed to indicate that all the conspirators named were in the conspiracy charged; evidence was entirely circumstantial and failed to exclude possibility of applying to a conspiracy other than the one charged, thus a defendant may have been convicted of connection with a conspiracy other than that charged. The variance was between the charge of one conspiracy and proof of various ones in some of which not all defendants participated. Cohan, however, was individually charged with participation in two conspiracies, involving the same co-conspirators, in each of two separate specifications and the same offenses remained since he was shown to have joined in each offense with one or more than one of the accomplices charged in each specification. Failure to connect all conspirators charged is not fatal. Neely v. U. S., 145 F. 2d 828, 829, hn 3, (5th Cir. 1944); cf. Quirk v. U. S., 161 F. 2d 138, 141, hn 4 (8th Cir. 1947); CM 188152 (1929), Dig. Ops. JAG 1912-40, sec. 424 (24); CM 320681. Watcke, 70 BR 125. 133. said that it is a favorite plan of those convicted of an offense to criticize their counsel, but that a defendant confides his case to counsel, authorizes them to speak for him during the trial," and cannot complain of the actions of his own personally selected counsel." Nevertheless, effective representation is a matter of continuous interest to the Army's judicial authorities. However, in this instance the record and allied papers do not support such criticism as it is manifest that the attorneys represented their client with loyalty, diligence, intelligence and professional skill. The allied papers disclose that Captain Richard Frank, trial judge advocate at the trial, was first the investigating officer, then the technical accuser, and later the trial judge advocate. He was appointed to investigate charges dated November 26, 1948, sworn to by another person. The record indicates that his service in this assignment was fair, impartial and in accordance with the directions of Article of War 70 and paragraph 35a, Manual for Courts-Martial, U. S. Army, 1928. At the conclusion of his investigation, he determined and recommended that the accused should be tried by general court-martial. Inasmuch as he had encountered a technical omission in two of the specifications, he redrafted the charge sheet and swore to the second one (on which trial was had). There is no provision in that manual, nor any rule of law which, at the time these duties were performed, operated to disqualify Captain Frank from serving in the three capacities in the manner mentioned and defense specifically waived any objection." It may be remarked in this connection that the provisions of Article of War 70 are directory, not mandatory, and compliance therewith was not a prerequisite to the court's jurisdiction. No contention has been made nor is there any evidence. tending to show that Captain Frank was actuated by any ulterior or illegal motive in the performance of his duties nor that he failed to perform them properly." 13 Accused's assertion that there was a multiplicity and duplicity of charges cannot be sustained. Conspiracy, or an agreement to commit a criminal offense, and the subsequent commission of the offense itself, even if effected pursuant to the agreement, are each » Diggs v. Welch, 148 F. 2d 667, 668, 670, hn 1, 2, 5 (App. D. C. 1945) cert. den. 325 U. S. 889; In re Fisher, 179 F. 2d 361, 363, hn 1, (7th Cir. 1950); United States ex rel Webber v. Ragen, 176 F. 2d 579, 586, hn 18 (7th Cir. 1949); United States v. Wight, 176 F. 2d 376, 379, hn 6 (2d Cir. 1949); Lewis v. Sanford, 79 F. Supp. 77, 78, hn 5, (D. C. N. D. Ga., 1948). 10 U. S. v. Sorrentino, 174 F. 2d 721, 723, hn 5 (3d Cir. 1949). 11 Adams v. Hiatt, 79 F. Supp. 433, 434, hn 3 (D. C. M. D. Pa. 1948). 12 CM 282496, DuBarry, 54 BR 383, 389; CM 315877, Ellis, 65 BR 151, 158; cf. subparagraph 45b TM 27-255, February, 1945, Military Justice Procedure. 13 Humphrey v. Smith, 336 U. S. 695 (1949). 14 cf. Keyes v. U.S. 109 U. S. 336, 337, 340. |