trials 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 accused and over the offenses of which he was convicted. There was no error which injuriously affected his substantial rights, and the evidence supports the findings. The sentences are legal and not excessive, as modified. His record thus far, both in military and civilian life discloses an anti-social course of conduct which has stamped him as such a burden upon society as to arouse no sentiments of sympathy in people of good will.

* * *

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 Nick J. Scott, 39133751, et al . (CM 290659)

Applicant was tried in a common trial with Zack C. Taylor by a general court-martial near St. Laurent, France, on September 26, 29, 1944, and both were found guilty of assault with intent to commit rape in violation of Article of War 93. They were sentenced to dishonorable discharge, total forfeitures, and confinement at hard labor, Taylor for twenty years and Scott for 15 years. The reviewing authority, because of an error during the trial, disapproved the sentences as to each accused and ordered a rehearing before another court. They were again tried in a common trial by a general court-martial, this time at Cherbourg, Manche, France, on November 21, 1944 and again found guilty of assault with intent to commit rape in violation of Article of War 93. Each was sentenced to dishonorable discharge, total forfeitures, and confinement at hard labor for 20 years. The reviewing authority approved only 15 years of the sentences to confinement at hard labor, and the sentences, as modified, were ordered executed after a board of review, constituted under Article of War 502, had

15 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).

held the record of trial legally sufficient. Scott's sentence to confinement has been reduced to 12 years through clemency action and Taylor also has received clemency.

Petitioner now presents an application for relief under Article of War 53, requesting vacation of his sentence and "judgment." He alleges, in substance, the following: that he was denied due process of law by arrest for and accusation of a crime by military police assertedly without foundation for such charge; that the investigation before trial was not thorough and impartial, referring to Article of War 70', in that one witness for accused Scott who allegedly could have established an alibi was not examined by the investigating officer; that the evidence at his trial was insufficient to support the findings of the court, urging that the identity of petitioner as the perpetrator of the offense was not established beyond a reasonable doubt; that error was committed during his trial because the court received testimony by a prosecution witness who could not speak or understand French as to the complaints of the prosecutrix who could speak only French, because the prosecution failed to cross-examine a defense witness, and because the jury (court) was not expressly instructed to acquit unless they believed beyond a reasonable doubt that accused was identified as the one who committed the crime; and that bias and prejudice was shown against him during the pre-trial procedures and during his trial because he was a member of the colored race.

The record of trial contains evidence to the following effect: Miss Yvonne Paisson was knitting outside the kitchen door of her parents' home at LaCambe, Calvados, France on August 13, 1944. About 6:15 or 6:30 p. m., two colored soldiers entered the courtyard and one of them asked in French for wine, cider, or cognac. When Miss Paisson saw the soldiers, she asked her sister-in-law, who was about to leave, to stay, and when the soldiers requested her to chain the dog so they could leave, she did so and they left. Her sister-in-law then departed, and she was alone for a short while when the two soldiers returned and asked her the direction to LaCambe, which she gave them. They then told Miss Paisson they wanted "a Mademoiselle" and when she told them she didn't know any, they told her it was she they wanted. Miss Paisson thereupon cried out, and ran into the garden pursued by the soldiers. They caught her, threw her to the ground, "the black one" (identified at the trial as Scott) putting his knees on her legs, lifting her dress and pulling her pants down, while the mullatto (asserted to be Taylor) "kept me by the shoulder all the time and

2 10 U. S. C. 1542.

kept my mouth shut." Just then Miss Paisson's brother-in-law, Mr. Thiebot, arrived, saw what the soldiers were doing, and said he was going to call the police. The two soldiers immediately ran away, passing close to Mr. Thiebot. A soldier's knit cap was found near the route of flight. Shortly thereafter, (about five minutes), two military police, Privates Rea and Herman, who were riding bicycles in the vicinity, came upon Miss Paisson who appeared to be in a very distraught condition; she was crying and hysterical, her nose was bleeding and her dress was dirty in back and torn. Private Rea, while returning from notifying the military police, found Scott and Taylor on the road about a mile from the victim's house, "sweating," and out of breath coming from the general direction of the Paisson house. He questioned them and "they got all mixed up in their answers," first saying they had been to LaCambe, then claiming it was Longueville-a town in a different direction, and where both were stationed, so when the sergeant of the guard came up they all went back in a jeep. When they arrived at Miss Paisson's house "The girl identified them" by pointing at them and saying "oui, oui." Both accused were taken to the stockade where an identification parade was held some days later. Meanwhile Taylor had retrieved the lost cap from the military police. Miss Paisson pointed out Taylor, (who had talked to her in French on the day of the offense), without hesitation but identified another soldier in place of petitioner. However, she recognized Scott when he was brought back to her home later, and was unequivocal and positive in her identification of him at the trial, as was her brotherin-law, Mr. Thiebot.

Both accused testified in their own behalf at the trial that they were together on the afternoon of August 13, 1944, wandering in the vicinity of Longueville trying to find wine, cider, and cognac which they got at several places and on the way back to their station were picked up by a military policeman because a woman had complained of being raped by two colored soldiers. The defense also produced two French witnesses who testified that they had seen the two accused at Deux-Jumeaux from 5:15 to 5:30 p. m. on August 13, 1944, which place was between three-quarters of an hour, and an hour's walking distance from LaCambe, the scene of the offense. Another French witness testified the two accused came to her cafe in Deux-Jumeaux at 6:00 p. m. on August 13, 1944 and left about 6:20, but she had no independent recollection of the time, basing her statement of it on what a neighbor had told her.

The facts in petitioner's case, as established by the record of trial, do not reveal any illegal arrest, as he contends. Both from

the testimony of Rea, the military policeman who apprehended applicant and his accomplice immediately after the offense, and from the two accused's own testimony, it is evident that Rea merely stopped them for questioning and that it was the "Sergeant of the Guard" who took them in his vehicle to the victim's house. Furthermore, Rea's questioning of Scott and Taylor took place very shortly after he had heard the complaints of the victim and had seen her condition. The fact that he did not understand the victim's language does not mean that she could not somehow, by gesture or otherwise, convey to him the general idea of her predicament. Her physical condition alone, aside from her evident emotional stress, would reveal that she had recently experienced some gruelling and abhorrent incident. The "Sergeant of the Guard," to whom the complaint had been communicated, had sufficient reason and authority to arrest accused and his companion who were suspected of having committed the offense."

While the report of investigation of charges before trial does not include statements by the witnesses who later appeared at petitioner's trial in an attempt to establish an alibi, there is nothing other than applicant's own averment in his petition to indicate that he requested these witnesses to be questioned by the investigating officer, or at the time of the investigation asserted his presence at Deux-Jumeaux as an alibi. In his summary of expected testimony the investigating officer listed petitioner's probable testimony in part as follows:

"Pvt. Scott stated he knew nothing about the attempt rape charge but admits he was absent from his company area without proper authority.

Nothing is stated in the summary concerning any assertion by applicant that he had alibi witnesses. Moreover, even if applicant had urged an alibi and the investigating officer had failed to interview his witnesses for that purpose, he would not have been harmed thereby for these witnesses did appear at his trial and testified in his behalf. A court-martial conviction resulting from a fair trial will not be invalidated merely because the pre-trial investigation did not fully accord with the provisions of Article of War 70.'

The evidence presented at the trial as to accused's identity was more than ample as a basis upon which the court could have determined beyond a reasonable doubt that he committed the

3 Paragraph 20 of the Manual for Courts-Martial, U. S. Army, 1928; CM 313163, Hawkins, 63 BR 29, 34; Cf. CM 327409 Armstrong, 76 BR 101, 106; Winthrop Military Law and Precedents (2d Ed. 1920 Reprint) 123; subparagraph 20b of the Manual for Courts-Martial, U.S. Army, 1949.

Humphrey v. Smith, 336 U. S. 695, 700, hn 2 (1949).

offense charged. Within a short time after the incident petitioner and his companion, Taylor, were apprehended in the vicinity of and coming away from the offense situs, out of breath, "sweating" and giving confused answers as to their recent whereabouts, they both testified they had been together all the afternoon of August 13, 1944 when the offense occurred, and Taylor was consistently identified at all times as one of the offenders by both the victim and her brother-in-law, the other eye-witness; although there was testimony that the former made a mistake in her identity of petitioner at an identification parade, she positively identified him shortly after the incident, at another identification line-up, and at the trial, referring to scars on his face; and he was definitely pointed out by Mr. Thiebot when the case was tried. Much of the evidence as to the presence of accused elsewhere at the time of the crime included a time element of such an elastic nature as not to be substantially inconsistent with the appearance of the soldiers at Miss Paisson's home.

The testimony of the prosecution witness, Rea, as to Miss Paisson's identification of Scott immediately after the offense, of which petitioner complains on the ground that the witness did. not understand French, the girl's language, was not admitted in error. Rea testified that he did understand the meaning of the French words "Oui, Oui," (an affirmative), which he testified the complainant stated in pointing at petitioner and Taylor immediately after the incident. This was proper testimony, for evidence of subsequent identification of an accused by the victim of crimes such as charged against petitioner has been held admissible in court-martial cases. The Board of Review in a similar case stated:

"It appears to the Board of Review not only do reason and logic support the rule permitting the admission of such evidence, but also practical necessity dictates its use. This is particularly true under the circumstances so frequently revealed in records of trial coming before the Board of Review where the issue of the identification of accused is sharply contested. The evidence in support of identification of accused as the malefactor is in the majority of instances dependent upon the testimony of civilian witnesses who are nationals of the country in which the Army of the United States is engaged. These witnesses in a great number of instances are unfamiliar with the English language and must give their testimony through interpretors. They also experience difficulty in distinguishing the physiognomy of the American soldier-both white and colored after the lapse of time between the incident giving rise to the charge