guard at about 10:00 p. m. on that date but also stated that he did not see him after that time; the third claimed to have seen Miles asleep in his tent at 10:00 p. m. on that evening. After each accused had been fully advised of his rights by the law member and given an opportunity to consult with their counsel, neither Boyd nor Miles elected to testify and no other evidence was presented by the defense. Accused's position that the court-martial lacked jurisdiction because of non-conformity with the requirements of Article of War 11', in that the appointed defense counsel was not a qualified lawyer or a member of the Judge Advocate General's Corps as purportedly required thereunder, is untenable. The determination of the proper personnel for such appointment is one for the appointing authority to make on the spot; a study of the record discloses no evidence aside from the unsupported conclusion of present counsel to indicate an abuse of his discretion in this respect, or that there was a member of the Judge Advocate General's Corps or a member of the bar, as referred to in the above article of war, available for use as defense counsel." From a careful examination of the evidence properly introduced at the trial a conclusion is compelled that the guilt of applicants as charged was clearly established by the evidence. Their felonious participation appears from the unrefuted testimony of Miss Ganswind, the woman assaulted, who positively identified them both at a pre-trial line-up and from a group of soldiers in the courtroom. There is no persuasive indication that her testimony was incorrect in any respect; however, the court must be presumed to have taken into consideration all matters adversely affecting credibility when weighing the evidence prior to arriving at its findings. As it was afforded the opportunity of viewing the witnesses as they testified, its determination is entitled to great weight.' Nothing has been encountered which would lend color to present counsel's unsupported conclusion that the defense counsel, Captain Alford C. Shellum, was incompetent. The mere fact 1 10 U. S. C. 1482 2 Hiatt v. Brown, 339 U.S. 103, 108, hn 2 (1950); Henry v. Hodges, 171 F. 2d 401, 403, hn 5 (2d Cir. 1948) cert. den. 69 S. Ct 937, rehearing den. 69 S. Ct. 1167. 3 Present counsel's objection that she did not relate specific acts connected with the offense but rather stated conclusions cannot be sustained in view of the fact that the words complained of were interpreted and it is evident that when she stated that Boyd was attempting to rape her, she was summarizing the acts to which she specifically testified, i.e. that those standing around "besides these two soldiers" loosened their belts, that Boyd got between her legs and tore her panties, while Miles attempted to insert his penis into her mouth-thus indicating joint participation as an aider in the obvious, general intention of effecting involuntary intercourse. Larsen v. Portland SS Co. 66 F. 2d 326, 329, hn 1, (9th Cir. 1933); MGM Corp v. Fear, 104 F. 2d 892, 897, hn 2, (9th Cir. 1939). that Captain Shellum, was not a lawyer did not render him incompetent to act as defense counsel. Records of the Department of the Army disclose that he was a mature officer 33 years of age with extensive experience as a member of both general and special courts-martial; his efficiency rating for the period ending May 31, 1949 was in the superior bracket, the highest adjective rating; hence, he was not unqualified to represent the accused in the proceeding." Furthermore, the record reveals that applicants, when asked at the trial whom they wished to introduce as counsel, affirmatively introduced the regularly appointed defense counsel and assistant defense counsel. The verbatim chronicle of the trial discloses that defense counsel conscientiously protected the interests of petitioners, serving loyally, intelligently and diligently; their representation in all respects complied with the requirement that it be of such character as to preserve the essential integrity of the proceedings as a trial in a court of justice. An accused "is entitled to a fair trial, not a perfect one." 66* * * It has been said that it is a favorite plan of those convicted of offenses to crticize their counsel. "The opportunity to try his former lawyer has its undoubted attraction to a disappointed prisoner". Nor is the fact that a defendant after a result which is unsatisfactory to him criticizes the representation afforded at the trial an unique occurrence in the history of trials both military and civil. Unquestionably, now that the record is made, able counsel can go over every question and perhaps frame a better one, may assign better reasons for objections taken, may suggest avenues of cross-examination which did not occur to him who actually faced the court and jury. So too, military strategists go over the movements of lost battles and demonstrate how it might have been won. The short answer to this line of argument is that the constitution does not guarantee the assistance of the most brilliant counsel * * 198 Petitioners were afforded ample opportunity to furnish whatever testimony they desired at the trial. An expressed desire to testify, uttered for the first time as far as can be ascertained, more than one year after the trial comes with poor grace and is not persuasive. Nor, is Miles' assertion that he failed to testify because of fear substantiated by the record or within the realm of probability. He states that it was common knowledge who the soldiers present were; yet at this late date he still (with different 5 Liner v. Cozart, 80 F. Supp. 540, hn 1, (N. D. Tex. 1948), affd 174 F. 2d 471. 6 U.S. ex rel Weber v. Ragen, 176 F. 2d 579, 586, hn 18, (7th Cir. 1949). 7 Diggs v. Welch, 148 F. 2d 667, 670, hn 4, (App D. C. 1945) cert. den. 325 U. S. 889. 8 U. S. ex rel Mitchell v. Thompson, 56 F. Supp 683, 688, hn 8, (S. D. N. Y. 1944). counsel) is silent as to their identity. Thus since this asserted evidence is peculiarly within his power to produce, his failure to do so gives rise to a presumption that such evidence, if produced, would be unfavorable." Neither can it be successfully maintained that accused's counsel erred in advising them (if they were so advised) not to testify on the merits. Their affidavits, submitted with the applications for relief, fix their presence at the scene and it therefore appears that the judgment of their former counsel was sound when he made the wise decision (if it was done upon his advice) not to eliminate all doubt as to their appearance at the locale of the offense, by permitting them to place such evidence in the record. This evidence would also have been at variance with their apparent effort to establish an alibi. It still has not been revealed what, if anything, would have been related by them on the stand, other than that they would make a blanket denial of guilt of the offense in general terms. That was presented at the trial by the plea of not guilty. One may not, as here, withhold asserted evidence, speculate on a possible successful outcome and then in the event of an adverse result claim error.10 Although petitioner Miles contends he was afforded insufficient time in which to prepare his defense, allied papers attached to the record of trial indicate the contrary. Captain Shellum, defense counsel for both accused, represented them at their request at the pre-trial investigation completed June 7, 1949. The charges were served on the accused on June 11, 1949; trial was held June 21, 1949; and at the trial there was no request for continuance. The first complaint in this respect was contained in the petition now before me. I feel compelled to conclude that the accused had ample opportunity to prepare for trial." In additon, this contention lacks substance for the reason that they herein have failed to show, or even claim, that a better defense could have been perfected, regardless of additional time which might have been granted their counsel in which to prepare.' 12 The contention that the evidence of each is "now available" for the other is not of aid in considering its use and impact in the event of a new trial, because upon that contingency occurring, each accused would then again be entitled to refuse to testify upon Clayton v. U. S. 152 F. 2d 402, 403, hn 2, (9th Cir. 1945). 10 Queenan v. Oklahoma, 190 U. S. 548, 552; U. S. v. 5 Cases, 179 F. 2d 519, 523, hn 13, (2d Cir. 1950). 11 See Avery v. State of Alabama, 308 U.S. 444, 452, hn 7, (1940). 12 U.S. v. Lowrey, 84 F. Supp 804, 806, hn 1, (W. D. Pa., 1949); Avery v. State of Alabama, supra. 13 the grounds of possible self-crimination, and in no event could either be compelled by the other to testify, since each must "request" it before he is a competent witness." It is noted that Boyd, in a statement dated May 16, 1950 at the Federal Reformatory, Petersburg, Virginia, told a far different story from that currently stated. He then (and at the United States Disciplinary Barracks in November, 1949) claimed to have saved the prosecutrix from being raped by about six other soldiers. Miles in a statement dated October 17, 1949, at the Branch, United States Disciplinary Barracks, Fort Hancock, New Jersey, was quoted as follows: "Subject stated he and a few of his friends were on maneuvers and while near a town they went into a bar where they spent the evening drinking. During the course of the evening a girl entered the cafe and began drinking with the men. When she arose to leave one of the soldiers grabbed her by the arm and struck her. The rest of the men joined in and during the scuffle, part of the girl's clothing was torn from her body. She was then 'dragged' outside where the men attempted to seduce her. The subject stated that during the scuffle he also struck the girl In view of their various inconsistent statements it is apparent that little value could be given their testimony in event of a new trial. It is obvious that the court's findings of guilty was proper and just. Courts sit as well to convict the guilty as to acquit the innocent. The burden of establishing unfairness and the denial of a fair trial is upon applicants, who have failed to establish such a fact here.15 Petitioner's complaint that the sentence is excessive is not justified. The legal maximum sentence as to each was dishonorable discharge, total forfeitures and confinement at hard labor for twenty years. In a very large Pacific area, for example, the average sentence for this type of offense, as reduced by remission and suspensions, over a period from July 1942 to February 1946 was over eight years' confinement; for the peacetime portion of this time, the average was elevated three and a half years. Clearly, the sentence as modified is not excessive under the circumstances. Whether subjects earn clemency by their conduct in the future cannot be determined here. * * Able argument for applicants by their present counsel, presented on September 15, 1950, together with other matters sub 13 Article of War 24, 10 U. S. C. 1495. 14 Page 175, of the Manual for Courts-Martial, U. S. Army, 1949. 15 Couchois v. U. S., 142 F. 2d, 1, 2, 3, (5th Cir.) cert. den. 323 U. S. 754. mitted in behalf of petitioners, have been fully considered in this opinion. Good cause for the granting of relief under Article of War 53 does not appear, accordingly, the petitions will be denied. JAGY CM 340855 E. M. BRANNON The Judge Advocate General 4 October 1950 MEMORANDUM OPINION SUBJECT: Application for Relief under Articles of War 53 in the Case of Sergeant First Class Roy H. Rogers, RA 13264099 (CM 340855) Applicant was tried by general court-martial at Fort Belvoir, Virginia, on March 15, 1950, and found guilty of wrongful sale of Government property (drugs and medical supplies, four specifications). He was sentenced to dishonorable discharge, forfeiture of all pay and allowances to become due after the date of the order directing execution of the sentence, and confinement at hard labor for one year and six months. The reviewing authority approved the sentence, designated a United States Disciplinary Barracks as the place of confinement, and, after the record of trial had been held legally sufficient by a board of review constituted under Article of War 50, ordered the sentence executed. Petitioner now presents an application for relief under Article of War 53 requesting "Complete Remission or Retrial." In support of his application for relief Rogers recites the following reasons in his petition as grounds therefor: that the prosecution did not prove beyond a "responsible" (reasonable) doubt that the items petitioner sold were Government property; that there was no evidence to prove that Government property was "missing"; that the alleged value of the property sold was not proved; that he did not "knowingly and wilfully" steal the items in question from the Government" but considered them his property "by virtue of inheritance" as his share of the "Civilian Clinic" in which he worked, and had permission to sell them; and that the evidence was insufficient to support the findings and sentence. * Attached to the petition are copies of two Medical Supply Information letters from the Medical Supply Section, Schenectady |