draw from the room when a minute or more time had elapsed after the fight had ended, petitioner called to him that he wanted to discuss the matter; that Clayton refused, continuing toward the door; that thereupon, Mason jumped to his feet, bringing a knife out from his hip pocket, disregarded his companions' cries, rushed after the disappearing ex-combatant and as the latter looked over his shoulder, stabbed him repeatedly in the back; that the wounded man rushed frantically about seeking an escape, seized and wielded a broom but failed to deter accused with it and was again caught by the knifer and stabbed in the back several additional times; that during the last of this episode Mason snatched a fire axe from the wall with one hand, and attempted to bring it into play but was disarmed by the shouting soldiers and the melee ended; that both were transported elsewhere for medical treatment where petitioner declared several times and to several persons that he hoped the stab wounds would prove fatal. At the trial, accused testified that Clayton was the aggressor and that others aided him in beating and kicking Mason and stealing his betting money from the bed. He added that he was knocked unconscious, (was not drunk), and remembered nothing of the stabbing events. He denied the statements of hope for a fatal termination of the wounds which the different witnesses attributed to him and alleged prejudice by Sergeant Clayton against him because of an asserted previous unpleasantness between them. Ten stab wounds in the victim's back were noted, two of which penetrated the posterior part of the pleural cavity. After the court, upon suggestion by defense counsel of temporary insanity, had requested the appointing authority to secure a medical mental evaluation, the defense in open court stipulated with the prosecution that if Captain Halversen, the assistant chief of the Neuropsychiatric Service in the 361st Station Hospital, were present he would testify that petitioner was examined in the neuropsychiatric outpatient department of that hospital, had no history of an evidence of mental or emotional abnormality, revealed no evidence of "past or recent psychosis," was sane at the time of the occurrence charged and had the mental ability to participate in his own defense. Thereafter, the court rejected the claim of temporary insanity. At the investigation under the provisions of Article of War 70, accused was represented by one of the two officers who defended him at the trial. Counsel and applicant both cross-examined witnesses in detail at the pre-trial investigation. No support is found for petitioner's present weakly asserted statement of "possible" temporary insanity; in fact there is the strongest kind of medical testimony to the contrary and his agile memory as to all but the damaging parts of the occurrence indicates a "wilful forgetfulness" rather than a mental aberration. Furthermore, a crime of violence would not be excused under the facts in evidence by a so-called "berserk moment" or "maniacal outburst." Mason's virulent and vicious post-event comments well support the conclusion that he consciously intended the death of the victim. His words and actions indicate the influence of vicious resentment from his unsuccessful encounter rather than an insane impulse. To demonstrate insanity more than a mere personality defect or deterioration of moral fibre must appear.* No request for the presence of counsel at the psychiatric examination was made to the court nor is such attendance required by any authority of law or custom.* The theory of self-defense is not applicable to the facts in the instant case even if petitioner's contention that his victim was the original aggressor were accepted. In the first place, it cannot be said that the force used by Clayton under the circumstances could have called for the employment of a knife for protection, especially where Clayton indicated amenability to a discontinuance upon capitulation. In the second place, accused was the aggressor in the later fight and thus is precluded from urging self-defense. He had been released, had arisen, had sat down, and had taken time to ponder. Meanwhile, his former antagonist gathered up his cap and headed for the outside, refusing further discussion. It was then that applicant initiated the second conflict, jumping up and rushing up treacherously to close with and stab the retreating figure from behind. This was no case of a sudden blow as the combatants were parting but a deliberate renewal after an appreciable interval. 66 * * if the alleged self-defender uses force against another where it is not necessary, or at least where he has no reasonable grounds for believing it is necessary for his own protection, he becomes an aggressor and violates the law. The situation must be such as to cause him reasonably to believe that injury to himself can be prevented only by the immediate infliction of injury upon the other. as soon as the assailant desists, there can be no further need of defense, and if the person defending himself pursues his assailant after the lat * 1 U. S. ex rel Wing v. Commonwealth, 90 F. Supp. 208, 211, hn 4 (W. D. Pa. 1950). 2 Cf. Holloway v. U. S. 148 F. 2d 665, 666, 667, hn 4, 5, (App. D. C. 1945), cert. den. 334 U. S. 852. a Smith v. U. S., 36 F. 2d 548, 549, hn 2 (App. D. C. 1929). ter has given up the attack, and inflicts injury on him, he is liable both civilly and criminally." Since the point next raised by applicant (that prejudicial errors occurred) is merely a generality without particularization and inasmuch as no support can be discovered for such an assertion, further discussion of this item is not warranted." Nor can it be found that the medical mental examination failed to measure up to the standards required in courts. Accused, at the time, almost three years ago, (aided by counsel) was perfectly willing to accept the stipulation as to the psychiatrist's testimony without attack upon the sufficiency of the doctor's examination. It is not just or fitting that one should be permitted silently to nurse along a point to the stage of expected reversible error and then complain of a situation which he by his silence has helped to create.' "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." Careful comparison of the trial testimony with the pre-trial statements of witnesses fails to disclose material or substantial differences between the two; in instances where a slight variance was found, defense counsel was quick to call this to the court's and the witness' attention. The result was that it appears that the court-martial received a full presentation of the pertinent facts. It may be seen from the discussion thus far that the happenings in the second encounter were the ones most determinative of the issues in this case. Since there is little, if any, dispute as to the events in that disturbance the assertion of variance in testimony which concerned the first one, would in any event lack importance. The present claim of prejudice of the court (absent clear and convincing proof), falls into the same category as that urging general occurrence of prejudicial error, dealt with above.' That it may be classified as groundless and an afterthought, is demonstrated by the refusal of petitioner to assert the proffered 4 American Jurisprudence, pp. 147, 148. • Couchois v. U. S., 142 F. 2d 1, 2, 3 (5th Cir. 1944) cert. den. 323 U.S. 754; Adams v. U. S. ex rel McCann, 317 U. S. 269, 281 (1942). 7U. S. v. 5 Cases, 179 F. 2d 519, 523, hn 13 (2d Cir 1950); Queenan v. Oklahoma, 190 U. S. 548, 552, hn 3 (1902). 8 Wade v. Mayo, 334 U. S. 672, 695, (dissent) (1947). • Jackson v. Sanford, 79 F. Supp. 74, 76, hn 5 (N. D. Ga. 1947). right of challenge for cause at the trial and his affirmatively expressed acceptance of the court as finally constituted. Nor was any such objection subsequently raised either during the progress of the trial or for the benefit of reviewing authority. Its present appearance is too tardy to be convincing. No good reason appears, nor is any advanced by accused for not extending to the court members the same presumption of fairness, honesty and integrity which the law extends to other individuals.1o "A verdict on the evidence, however, is all an accused can claim; he is not entitled to a set-up that will give a chance of escape after he is properly proven guilty. Society also has a right to a fair trial. The defendant's right is a neutral jury. He has no constitutional right to friends on the jury."" (emphasis added). When the complaint as to the ruling of the law member in sustaining an objection to repetitious recross-examination is analyzed, it is at once discovered that there was nothing of substance excluded which was not amply covered elsewhere in the record. It is not error for a court to limit reiterated and pointlessly protracted cross-examination." Again, the point that "most" of the witnesses were friends of the victim is not borne out by the evidence, nor is independent proof thereof supplied by the complainant. Moreover, as heretofore noted, the credibility factor played so little part in this case because of the clarity and certainty of the testimony on the critical points that further discussion thereof would serve no useful purpose. The last point urged by applicant, that the sentence was excessive, requires a determination whether aggravation was present to the extent that the crime was one of viciousnes and malevolence beyond the ordinary one of this type. The undisputed desscription in the evidence of applicant's actions in this near-tragic occurrence discloses that Mason's offense more than measures up to such a requirement. It was not his design that his victim. should survive; he exhibited no trace of regret thereafter, but rather by his often expressed remarks after the assault, emphasized his homicidal tendencies; nor can it be ascertained that he has since repented of anything in this connection except his failure to achieve the death of Clayton. In confinement, his conduct has followed the pattern of assaultive violence and lingering vindictiveness which he set in civilian life (nine arrests, followed by 10 Sunday v. Wakefield, 247 U. S. 350, 353 (1918). 11 Fay v. N. Y., 332 U. S. 261, 288, 289 (1946). 12 Cate v. Good, 181 F. 2d 146, 149, hn 9 (3d Cir. 1950). five convictions of breaches of the peace and assaults). He has descended from moderate security confinement to Alcatraz; thus he has failed to earn or justify a favorable sentiment in the minds of those who believe in the orderly conduct required by society. Until he demonstrates that he has altered his rule of conduct away from his personal code of violence he may not be heard to complain because the Government confines him to protect the public against his desperate acts. * * 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 Sergeant George J. Cocker, RA 13207716, et al (CM 324775) The applicant was tried by general court-martial jointly with Private Lester Ramey, at Kitzingen, Germany, on June 4 and 5, 1947, charged with burglary and larceny in violation of Article of War 93, and applying a government vehicle to their own use in violation of Article of War 94. Both were found guilty of the burglary and larceny charge, but not guilty of the third offense. The petitioner was sentenced to reduction to the grade of private, dishonorable discharge, total forfeitures, and confinement at hard labor for five years. After the reviewing authority had approved the sentence and forwarded the record of trial in accordance with Article of War 5012, a Board of Review, constituted in the Office of the Judge Advocate General, found the record legally sufficient; the Assistant Judge Advocate General in charge of military justice matters recommended that the sentence of confinement be reduced to eighteen months and execution of the dishonorable discharge be suspended until release from confinement. The sentence was ordered executed after modification by the reviewing authority to conform with these recommendations. By direction of the President, the unexecuted portion of the sentence to confinement was remitted on April 26, 1948. The dishonorable discharge was |