that of desertion; he insisted that at no time had he any intention of deserting the service. The accused stated that he went absent without leave in order that he might marry the girl who, some twenty-eight months before, had borne him a child.

The contention that the accused was denied benefit of counsel is, under the circumstances, without merit. A somewhat similar situation was involved in the case of Carter v. Illinois,' where our Supreme Court said:

"Inherent in the notion of fairness is ample opportunity to meet an accusation. Under pertinent circumstances, the opportunity is ample only when an accused has the assistance of counsel for his defense. And the need for such assistance may exist at every stage of the prosecution, from arraignment to sentencing. This does not, however, mean that the accused may not make his own defense; nor does it prevent him from acknowledging guilt when fully advised of all its implications and capable of understanding them. Neither the historic conception of Due Process nor the vitality it derives from progressive standards of justice denies a person the right to defend himself or to confess guilt. Under appropriate circumstances the Constitution requires that counsel be tendered; it does not require that under all circumstances counsel be forced upon a defendant."

When one considers that the accused in this case was convicted only of the charges to which he pleaded guilty, his contention is even less tenable. Our Supreme Court, in passing upon a plea of guilty, has said:

"A plea of guilty differs in purpose and effect from a mere admission or an extra-judicial confession; it is itself a conviction. Like a verdict of a jury it is conclusive. More is not required; the court has nothing to do but give judgment and sentence."""

In considering the petitioner's contention that he should be given a more favorable type of discharge so that he may take his place in society like any other citizen, it seems appropriate that his present status be viewed in the light of his entire military service. A review of his military record indicates that he enlisted on December 11, 1941, under an assumed name to conceal a desertion from the Army in 1937. Between that date and the time of his eventual release with a dishonorable discharge on May 12, 1950, he was in a duty status a total of less than eighteen months. He was convicted, at various times, of seven absences without leave. He

1 Carter v. Illinois, 329 U. S. 173, 174, hn 1 (1946).

* Kercheval v. United States, 274 U. S. 220, 223 (1927), quoted in United States v. Fox, 130 F. 2d 56, 58-59, hn 9 (3d Cir. 1942), cert. den. Fox v. U. S., 317 U. S. 666.

was previously sentenced to dishonorable discharge but later restored to duty; less than five weeks after this restoration, he again absented himself without leave, this absence being the basis of one of the charges to which he pleaded guilty at the trial from whose proceedings he now seeks relief. It would appear that society owes the petitioner nothing for his dubious military contribution. It has appropriately been said, in other cases of a similar dark background, that the granting of relief would work a gross imposition on those who served honorably and well.

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

SUBJECT: Application by Jimmie Marshall, Jr., for Relief under Article of War 53 in the Case of Private First

Class Jimmie Marshall, Jr., 34104459 (CM 320072)

Applicant was tried in the common trial of twenty-two accused by general court-martial at Hohenbrunn, Germany, on October 14-17, 1946 and found guilty (with 13 others) of joining in a mutiny, in violation of Article of War 66. He was sentenced to dishonorable discharge, total forfeitures and confinement at hard labor for 25 years. The reviewing authority approved the sentence but reduced the period of confinement to five years. A board of review, constituted under Article of War 5011⁄2 held the record of trial legally sufficient to support the sentence, which then was ordered executed. His sentence to confinement subsequently was reduced by clemency action to 311⁄2 years. Marshall was released on parole April 17, 1948, and the unexecuted portion of his sentence was remitted on August 19, 1949.

Petitioner now presents an application for relief under Article of War 53, requesting restoration of rights, privileges and property and "an Honorable Status". He avers that newly discovered evidence elicited from a co-defendant at his trial indicates that applicant was not the driver of the tank involved in the mutiny, that he received a "perfunctory" defense, and that his

identity as a participant in the offense was not established beyond a reasonable doubt.

In support of his petition accused submits an affidavit of General Prisoner John H. Turner, the co-defendant above-mentioned, which was made at the place of confinement of both petitioner and affiant and alleges in substance that at the time of the disturbance he was in a position to see the driver of the tank and that its driver was not the applicant but was a new-comer to the organization, that affiant was sitting on top of the tank next to Major Bosson, who was endeavoring to quell the mutiny, and can definitely state that the driver was not Marshall.

The record of trial reveals the following: that on July 3, 1946 a large group of enlisted men of the 266th Ordnance Battalion located at Hohenbrunn Ammuntion Depot, Hohenbrunn, Germany, went to Munich on pass; that enroute the trucks in which they were riding were stopped by military police, who asserted that the vehicles were exceeding the speed limit; that while in Munich several of the men were stopped by military police, allegedly threatened and searched for weapons; that on the return trip, the vehicles again were stopped by military police, and the men assertedly forced to dismount and searched by military police at the point of drawn weapons.

The evidence further disclosed that upon return to the depot area, at about 11:15 p. m., the men were excited and angry over the treatment accorded them, and desired that something be done about it immediately. One group entered the Headquarters building of the depot which also was used for officers' quarters, and was stopped by Lieutenant Jones, Company Commander of the 657th Ordnance Ammunition Company, who had previously retired for the night. He ordered the men to proceed to the company street and returned to his room to put on his uniform. The Depot Commander, Major Bosson, hearing the commotion also dressed and subsequently came out.

There was testimony that the supply room guard was overcome, the supply room opened, and that over the mild verbal protestations of the supply sergeant, weapons and ammunition were issued to many of the men. After the issuance of the arms there was desultory and sporadic firing of several hundred rounds of ammunition during the next two hours. The men were violently angry, there were outbursts of cursing, and of obscene and vile language.

The officers present attempted to quiet the men so that a coherent story could be obtained. Orders were given to the men to go to bed and promises made that their complaints would be investigated the following day. However, once armed, the men

attempted to leave the depot area to return to Munich and "get those M. P. bastards". Lieutenant Jones gave orders to Sergeant Conway to call out all the men so that he could explain what was to be done. Conway was able to get only a few of the men out, as he was also detailed by Lieutenant Jones to take Coleman, one of the accused, to the guardhouse for defying the officer.

Lieutenant Jones then drove out of the area to investigate the delay of one of the pass trucks, and Major Bosson attempted to halt another truck from going out the gate by standing in the road. When the driver would not stop, the Major was compelled to jump out of the way but leaped upon the running board as the truck passed, seized the steering wheel, and maneuvered the vehicle across the road, so that he blocked the passage of other traffic. At about this time a tank used by the depot was driven up the road. Several armed men were riding on top of it, firing their weapons in the air. Major Bosson boarded the tank, kicked the visor of the periscope closed, and threatened the driver with court-martial if he did not stop the vehicle. The tank was thereupon brought to a halt in front of the headquarters building, and the driver then "disappeared". Approximately 100 soldiers of the organization crowded around the tank, as the Major gave the order "at ease", and attempted to reason with them. He ordered the soldiers back to bed and told them that their conduct was mutinous, and that the Military Police and Constabulary were numerically superior in number and arms. The men did not disperse and continued shooting and shouting that they wanted to go to Munich and "shoot up" the M.P.'s and give them what they deserved. Major Bosson told the soldiers that if they wanted to shoot someone, they would have to shoot him first. This statement had a sobering effect on the men and they "quieted down" considerably. A non-commissioned officer then attempted to keep the crowd quiet, and Major Bosson entered the Headquarters building to report the incident to the Military Police and Constabulary Headquarters. When he returned to the tank, the crowd was quieter, though there was sporadic firing until 2:15 a. m., July 4, 1946, when the men finally were quieted and dispersed. Major Bosson testified that he personally had ordered the men to disperse, turn in their weapons and go to bed, on about twenty occasions during the two hours of the disturbance. He was unable to recognize individuals in the crowd and gave no testimony involving petitioner.

Corporal Arthur L. Mitcham identified Marshall in court and testified that on the night in question, petitioner "when he came up from the tank" said "no one knows who drove it up here".

Marshall was not speaking to Mitcham, "He just spoke the words". The witness also testified that he knew applicant was a qualified tank driver. (Marshall admits in his petition that he "was the regularly assigned driver of this tank".) On cross-examination he stated that when he saw Marshall, the latter was sitting in the tank, "in the hatch, on the left side", that the tank was not then moving, nor was the engine running. One of the ringleaders in the above melee was the aforementioned Turner.

Marshall remained silent at the trial, and there was no testimony offered specifically for his defense.

Mutiny imports collective insubordination and necessarily includes some combination of two or more persons in resisting lawful military authority. The concert of insubordination contemplated in mutiny need not be preconceived, nor is it necessary that the act of insubordination be active or violent. "It may consist simply in a persistent and concerted refusal or omission to obey orders or to do duty with an insubordinate intent." The acts of the soldiers involved in this offense in defiantly remaining grouped about the Headquarters building and the tank on which their commanding officer stood, (many illegally bearing and firing arms), when they were ordered to leave, constituted the concert of insubordination to superior authority which is the gravamen of mutiny. Clearly the actions of these men transcended mere disorderliness and, involving as they did, resistance to lawfully constituted authority, were mutinous."

Joining in a mutiny is the offense of one who takes part in a mutiny at any stage of its progress, whether he engages actively in executing its purpose, or, in being present, or stimulates and encourages those taking an active part. It is not reasonable to believe that petitioner could have failed, at some time during the extensive period of the unruly uprising, to have heard the orders to disperse, issued again and again by Major Bosson and other officers, or, having heard, could have misunderstood the import of what the officers were trying to accomplish."

In Volume 2, Wharton, Criminal Law, 12th Edition, section 1865, it is stated that:

"In riotous and tumultuous assemblies; all persons who are present and not actually assisting in their suppression may, where their presence is intentional, and where it tends to the encouragement of the rioters, be prima facie inferred to be par

1 Subparagraph 136a, Manual for Courts-Martial, U. S. Army, 1928; CM 249636, Williams, 32 BR 143, 147.

2 CM 258821, Santoiemma, 38 BR 119, 126.

Winthrop, Military Law and Procedents, 2d Ed, 1920 Reprint, p. 583.

• CM 267878, Lumpkins, 44 BR 149, 163.