any General Court-Martial were approved, ordered executed, or acted upon by any of the Division Commanders, said Division Commanders considered the judgment and recommendations of the Judge Advocate of the Third Armored Division.

"The various Judge Advocates during the time stated were all graduates of law schools and had practiced the profession of law prior to entering the Army."

Although the only questions presented by the accused in his application are those set forth in substance herein, the entire record of his court-martial has been studied in an effort to discover any evidence of prejudicial error. This is a case where proper and undisputed evidence discloses compellingly that the applicant committed a violent rape upon a woman of a country which American forces were in the process of overcoming. This crime under such circumstances takes on an unusually dark aspect as it reflects not only upon the accused, but upon the character of the nation he represented. While great care must be exercised that no substantial right of the accused be impaired, it must be borne in mind in this case that courts sit as well to convict the guilty by proper means as to acquit the innocent." The proceedings disclose that during the trial the procedures provided by military law were applied in a fundamentally fair way. This, for those subject to that judicial system, constitutes due process of law." The court had jurisdiction over the accused and over the offense of which he was convicted. There was no error which injuriously affected the substantial rights of the applicant, and the evidence supports the findings. The sentence as modified is legal and not excessive. It is observed that at the original habeas corpus trial in the United States District Court, the full facts as to petitioner's principal assertions there, (controlled court and ineffective counsel) were not presented to the trial judge by the respondent warden and those allegations stood practically unrefuted. Later, upon hearing of the motions for new trial and to vacate the judgment, although evidence disproving such charges was offered, it did not meet the tests of newly discovered evidence because it failed to satisfy the required showing of diligence and lack of prior knowledge as to such evidence." Thus, evidence available here was not before that judicial body when its determination was made.

It is noted that no official complaint of any kind was made as to the fairness of the trial until long after the trial. In such a

18 Couchois v. U. S., 142 F. 2d 1, 2, 3 (5th Cir. 1944) cert. den. 323 U. S. 754.

19 Reaves v. Ainsworth, 219 U.S. 296, 304, hn 2 (1911); Reilly v. Pescor, 156 F. 2d 632, 635, hn 8 (8th Cir. 1946); U. S. ex rel Innes v. Hiatt, 141 F. 2d 664, 666, hn 6 (3d Cir. 1944).

20 Evans v. U. S., 122 F. 2d 461, 468, 469, hn 22 (10th Cir. 1941).

situation the following words of Mr. Justice Reed are not without their appeal in any remedial action based upon equitable principles:

"It is not seemly that years after a conviction, when time has dulled memories, when death has stilled tongues, when records are unavailable, convicted felons, unburdened by any handicaps to a normal presentation of any claim of unfairness in the trial, should be permitted to attack their sentences collaterally by habeas corpus because of errors known to them at the time of trial.""

*

Good cause for the granting of relief under Article of War 53 does not appear; accordingly, the petition will be denied.

SUBJECT: Application for Relief under Article of War 53 in the Case of Private Billy D. Torrance, RA 16232276 (CM 325472)

Applicant was tried by general court-martial at Headquarters, Camp Batangas, Philippines-Ryukyus Command, on July 16, 1947. He pleaded guilty to and was found guilty of absence without leave (Charge I and its Specification), in violation of Article of War 61; and escape from confinement, (Charge II and its Specifications), in violation of Article of War 69. He was sentenced to dishonable discharge, total forfeitures, and confinement at hard labor for one year. Thereafter, the reviewing authority, in due course, promulgated the proceedings in general court-martial orders on August 27, 1947 and the sentence was duly executed. The record of trial was examined by a board of review pursuant to Article of War 502 and found legally sufficient to support the sentence.

Through his attorney, Judge O. Z. Ide, Detroit, Michigan, he now presents an application for relief under Article of War 53.

21 Wade v. Mayo, 334 U. S. 672, 695 (dissent) (1947).

In his petition and attached affidavit applicant alleges that the findings and sentence are unjust in that: at the time of trial the court erred in not raising the issue of sanity, not having been apprised of a provost sergeant's statement attached to the report of the pretrial investigation in which it appeared that the provost sergeant said accused was "a little bit insane"; extenuating circumstances allegedly were not brought to the court's attention, specifying asserted hazing by fellow soldiers and refusal of permission to "speak to a commissioned officer" about this; and urging that Torrance was mistreated while in confinement; defense counsel was an "incompetent", "Filippino Second Lieutenant" speaking "broken English" and "junior in grade to the Trial Judge Advocate", whom Torrance characterizes as experienced and competent; and petitioner was not afforded "services of a certain Major whom he requested" as counsel.

Accused also asserts that if a new trial were granted, he would "seek the testimony of fellow prisoners, my former Chaplain and other soldiers who could testify to the conditions and treatment I received while in confinement which unbalanced my judgment and drove me to the rash decision to escape". However, he has failed to submit any affidavits from them' although he was afforded the opportunity to do so, by this office.

The record of trial reveals that petitioner was absent without leave from April 4, 1947 to May 12, 1947 and that he escaped from confinement on May 17, 1947 as indicated by prosecution's evidence of extract copies of the appropriate morning reports and the testimony of competent witnesses. He escaped by jumping from a truck in which he was riding under guard (while shielded by a dust cloud).

He pleaded guilty to the charges, stating personally, in effect, that he fully understood the consequences of his actions in so doing.

After having his rights as a witness explained to him, Torrance testified in substance as follows: He was one of 10 men transferred from the 4025th Signal Service Group to the 391st Engineer Depot Company. In the new organization he was disliked and was subjected to abuses such as having his personal belongings disarranged while absent from his tent. "I had about all I could take. I think I got hot headed and left."-"I didn't want to make an issue in front of the Company Commander, so I just took matters in my hand and went AWOL". No noncommissioned officer was informed about these occurrences because, accused alleges, one of the offenders had warned him that he would be

1 Paragraph 102 (6) of the Manual for Courts-Martial, U. S. Army, 1949.

beaten up if he did not "watch himself", and also because he assertedly did not know the proper procedure for contacting his company commander or a chaplain about these matters. For this offense of unauthorized absence, he was confined, but he escaped by jumping from a truck while on a work detail.

No other evidence was presented by the defense. From the above, it is at once observed that it is not correct as currently contended that evidence of purported mistreatment by his fellow soldiers, which, he argues, caused the absence without leave charged, was not produced at the trial.

The claim that he was not well treated in confinement was not made at the trial. Nor has it been made since that time until the filing of the present petition so far as can be discovered, notwithstanding that Torrance had contact with the chaplain and that his case was investigated by the American Red Cross and by the various clemency and corrective agencies of the Army. During these procedures he was closely interrogated about details of his life and of the offenses, for psychiatric evaluation, yet failed anywhere to raise this issue. There is no escape from the conclusion that the matter is either grossly exaggerated or an afterthought. It is illogical to contend (if applicant does actually so contend), that defense counsel permitted Torrance to testify concerning alleged mistreatment as extenuation for the first offense, but prevented such testimony as to the second. The fact that petitioner wrote his family that he was getting along fine in the Army casts further doubt upon his contentions of mistreatment.

Nothing in accused's presentation is persuasive that he was insane when he committed the offenses or at the time of trial.' Army records reveal that the charges against petitioner were extensively investigated before trial and no substantial evidence was discovered which cast any doubt upon his mental responsibility. In support of his allegation, hinting at but by no means asserting insanity, he refers to a statement, given during the pretrial investigation by Private First Class Burke, to the effect that in Burke's opinion the accused was "a little bit insane". It is noted that in the same statement Burke said that accused escaped from confinement "because of his sweetheart and no more". Although Burke's statement was not before the court Torrance could not have been prejudiced thereby since, as worded, it is patently couched in the familiar colloquial style such as the frequently employed expression, “He's crazy", meaning his judgment is poor or he is mistaken, or a number of other things with connotations far short of insanity. This is no ground for a conclusion that the

2 Cf U. S. ex rel Wing v. Commonwealth, 90 F. Supp 208, 211, hn 5, 6, (D. C. W. D. Pa, 1950).

* *993

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*

court would have been justified on the basis of that statement in inquiring as to applicant's sanity. Actually, the amplified statement indicating the amorous background of the absence without leave merely describes compliance with a force which often persuades perfectly sane individuals to violate the law. Until the contrary is shown, a person is presumed to be sane, and a mere assertion that a person is insane is not necessarily and of itself enough to impose any burden of inquiry on the court Burke's weak assertion would not require an inquiry into mental responsibility nor does it attain the dignity of testimony which would serve to rebut or impair the presumption of sanity, aided in this case by strong evidence of legal responsibility for criminal acts. More than a personality defect or mere deterioration of moral fibre must appear as a prerequisite to a finding of insanity. There was no question of petitioner's guilt and he chose to present his own sworn testimony solely in an attempt to justify his actions by establishing extenuating circumstances. Neither his clear and succinct presentation nor the actions testified to are indicative of insanity. To "command respect criminal law must not offend against the common belief that men who talk rationally are in most cases morally responsible for what they do." "For the purposes of conviction, there is no twilight zone between abnormality and insanity. An offender is wholly sane or wholly insane."

995

It has not been demonstrated that accused was deprived of representation in his defense by military counsel of his own selection. This right was conditioned upon the availability of such counsel as might be determined upon application through the usual channels for the detail of a person selected by petitioner for the purpose. There is no evidence of applicant's having requested special counsel and his present contention to that effect is sharply controverted by the fact that he voluntarily expressed in open court at the trial a willingness to be represented by the regularly appointed assistant defense counsel, at the same time disclaiming a desire for the presence in his behalf of the regularly appointed defense counsel, a captain. One may not silently nurse an error to the point of expected reversibility and then be heard to complain of a situation which by his silence he has helped to create." Moreover, nothing in the record of trial indicates that Lieutenant

3 Paragraph 63, of the Manual for Courts-Martial, U.S. Army, 1928. Smith v. United States, 36 F. 2d 548, 549, hn 2, (App D. C., 1929).

Holloway v. United States, 148 F. 2d 665, 666, 667, hn 4, 5, 6, (App. D. C., 1945) cert. den. 334 U. S. 852.

• Subparagraph 45a, of the Manual for Courts-Martial, U. S. Army, 1928; Article of War 17 (10 U. S. C. 1488).

United States v. 5 Cases, 179 F. 2d 519, 523, hn 13, (2d Cir., 1950).