if it is consistent; if it is apparently honest; if it is not contradictory; if it is the same at all times; if it has the indicia of truth connected with it, that may cause to pass out of the case the consideration of the presumption arising from the possession of the property, but if it is not explained in that way it becomes the foundation of a presumption against the party who is thus found in possession of that property."

Mr. Chief Justice Fuller, in delivering the opinion of the Supreme Court affirming the conviction below stated:

*

*

"Possession of the fruits of crime, recently after its commission, justifies the inference that the possession is guilty possession, and though only prima facie evidence of guilt, may be of controlling weight unless explained by the circumstances or accounted for in some way consistent with innocence. "Nor can there be any question that if the jury were satisfied from the evidence that false statements in the case were made by defendant, or on his behalf at his instigation, they had the right not only to take such statements into consideration in connection with all the other circumstances of the case in determining whether or not defendant's conduct had been satisfactorily explained by him upon the theory of his innocence, but also to regard false statements in explanation or defense made or procured to be made as in themselves tending to show guilt. The destruction, suppression, or fabrication of evidence undoubtedly gives rise to a presumption of guilt to be dealt with by the jury. 1 Greenl. #37; 3 Id #34; Commonwealth v. Webster 5 Cush. 295."

Applying these principles to the instant case, Richie's possession of the fruits of the crimes shortly before committed upon DeFusco, is of controlling weight when coupled with his inability to account for it in a way consistent with innocence, the presumption of guilt arising from his fabrication of evidence", and the other circumstances in evidence.

In denying jurisdiction of the court at the time of the trial, petitioner in his first two contentions asserts that the defense counsel was not under the appointing authority's command, and that the appointing authority thereby lost jurisdiction over the accused. This objection was not made at the trial. The appointing authority was the Commanding General, XXXVI Corps; the accused, the defense counsel and the assistant defense counsel were all assigned to the 37th Infantry Regiment, a unit of the XXXVI Corps, during the month of August 1944. The court

4a Allen v. U. S. 164 U.S. 492, 500, hn 7, (1896); see also Lindsey v. U. S., 264 F. 94, 96, hn 4 (4th Cir. 1920); Seeman v. U. S., 96 F. 2d 732, 733, hn 1, (5th Cir. 1938); Neidhoefer v. Automobile 182 F. 2d 269, 271, hn 1, (7th Cir. 1950).

martial was appointed on August 1, the charges against the accused were referred to the court for trial on August 2, charges were served upon the accused on August 5, the court-martial order was amended August 9, the 37th Infantry Regiment was relieved from assignment to the XXXVI Corps on August 15, and the trial began on August 17. There is no showing that this transfer of the 37th Infantry was unknown to the accused at the time of the trial, but in any event these contentions are without merit.

The appointing authority is required to select a defense counsel, but there is no requirement that such person be under his command. The accused may ask for counsel of his own selection, either military or civilian, and the regularly appointed defense counsel may be excused. Individual counsel selected by the accused would not necessarily be under the command of the appointing authority, so it follows that there is no requirement necessary to the retention of jurisdiction, that regularly appointed defense counsel be under his command. It is shown in the record, and confirmed by the affidavit of Major Daly which the accused appended to his petition, that satisfaction with the regularly appointed defense counsel was expressed by the accused at the beginning of the trial. He cannot now complain simply because he was unsuccessful at the trial. The authority cited by the petitioner is clearly distinguishable from the present case. As to petitioner's contention that the appointing authority lost jurisdiction of the accused merely because of a transfer of his organization within the Army, the rule he seeks for adoption has neither practicality nor logic in its favor and if adopted would destroy the efficacy of the court-martial system. The power vested by Article of War 12 in general courts-martial to try any person subject to military law is not limited to persons under the command of the convening authority; it has no limitation except that the person to be tried shall be subject to military law. Since the accused was subject to the Articles of War, the general court-martial had jurisdiction to try him for violations thereof, no matter what may have been his unit's designation. When jurisdiction attaches by reason of arrest and service of charges on the accused, or in any other way,

Diggs v. Welch, 148 F. 2d 667, 670, hn 4, (App. D. C. 1945), cert. den. 325 U. S. 889 • The petitioner cites the following from Dig. Op. JAG 1912-40: CM 129173 (1918) Dig. Op. p. 169; CM 132574 (1919), Dig. Op. p. 170; and CM 152563 (1922), Dig. Op. pp. 170, 186, all of which were cases involving court members who sat during trial although they had not been properly appointed. Also cited from Dig. Op. JAG 1912-40 were CM 121539, 250.401, Feb 3, 1919, Dig. Op. p. 169; 250.4, Sept. 11, 1918, Dig. Op. p. 169; and 250.401, Jan 6, 1919, Dig. Op. p. 171, which were cases where the appointing command exceeded the authority given by law or regulations.

7 CM 227239, Wyatt, 15 BR 217, 255 (1943), 3 Bull. JAG 377.

8 Ibid.

it continues for the purposes of trial, judgment, and execution." This principle of the continuance of jurisdiction which has once attached is also well recognized in non-military jurisprudence.10 Somewhat similar questions to those here raised by the petitioner were involved in a recent case" in which the court said:

the court-martial was not illegally constituted by reason of the fact that the officers making up the court were not under the command of the convening authority. Nor is it material that petitioner was not attached to the command of the convening authority, in view of the ruling that the convening authority acted lawfully in convening petitioner's courtmartial."

The next contention of the petitioner is that the appointing authority delegated the selection of the court, and this contention is purportedly supported by an affidavit of Major Daly (defense counsel) in which it is stated that he learned of his appointment through the commanding officer of his regiment. Article of War 8 vests the appointment of general courts-martial in certain commands, including that of a corps commander, as was the case here. It is shown by the record that the order appointing the court was signed, "By command of Major General Anderson," along with the signature of an authenticating officer. This is the usual manner in which a commander exercises his function of command by written order;" the validity of such a manner of appointment of general courts-martial has long been recognized." The petitioner fails to distinguish between recommendation for appointment, which may have been accomplished by a subordinate commander, and the actual appointment itself.

Petitioner's fourth contention, that the appointing authority failed to refer the charges to his staff judge advocate for advice, is contrary to fact for the papers allied to the record of trial contain the original "Corps Judge Advocate's Report and Advice," dated August 2, 1944 and signed by the corps judge advocate, a lieutenant colonel. This report contains statements that the charges and accompanying papers were examined, that the evidence appears legally sufficient to sustain a conviction, that there was no indication that accused was insane then or at the time of the offense, and recommends trial by general court-martial. Since it appears

"Carter v. McClaughry, 183 U. S. 365, 383, hn 4, (1 Ed.) (1901); Mosher v. Hunter, 143 F. 2d 745, 746, hn 1, (10th Cir. 1944); Durant v. Hiatt, 81 F. Supp. 948, 955, hn 7, 956, hn 9 (D. C. N. D. Ga. 1948); CM 203393, Little, 7 BR 145, 149 (1935); CM 202770, Cooley, 6 BR 259, 261 (1935).

10 O'Connor v. Rhodes, 79 F. 2d 146, 153, hn 12 (App. D.C. 1935), cert. granted 296 U.S. 568, affirmed per curiam 297 U. S. 383 (1935).

11 Lucas v. Matthews, 90 F. Supp. 21, 27, hn 8, (S.D. Me. 1950).

12 Subparagraph la of Army Regulations 340-20 (1945).

13 McRae v. Henkes, 273 F. 108, 112, hn 2. (8th Cir. 1921).

that there was proper reference to the staff judge advocate as required by Article of War 70, the case cited by petitioner is not applicable to the facts here." Furthermore, later cases have consistently held that failure to refer a case to the staff judge advocate for advice prior to trial cannot affect the jurisdiction of the court-martial which tries the accused.15

The accused next contends that there was no approval of the findings and sentence by the appointing authority as required by Article of War 46. However, the record shows such approval, personally signed by “J. W. Anderson, Major General, U. S. Army, Commanding," the officer who appointed the court. Again, the authority cited by petitioner" is not applicable to the facts in this

case.

The next three of the applicant's contentions involve, respectively, the sufficiency of the evidence, the admission of evidence, and the asserted consideration of incompetent and prejudicial matter. It is urged that there was a denial of due process of law in that the reviewing authority failed to set aside the conviction for insufficiency of evidence. A sound legal discretion is vested in the reviewing authority by Article of War 37, so that substantial justice may be done." The exercise of judicial discretion will not be disturbed unless abuse is shown.18 In this case the record of trial discloses that the circumstantial evidence against petitioner justified a conviction, as the trial court and the reviewing authority (after the case was reviewed by his judge advocate), found. When it meets the fair tests required by law, as here, circumstantial evidence has probative value equal to and is as good as direct evidence.1 It cannot be said that his discretion was abused by the reviewing authority when he upheld the findings of the triers of the facts. No new evidence, and no mitigating circumstances, are shown to have been available for consideration by the reviewing authority at the time of his action.

The petitioner asserts there was a denial of a fair trial because allegedly evidence was admitted which was obtained by agents of the Federal Bureau of Investigation after long questioning. It is said that the accused was questioned in Camp Phillips for about 30 or 40 minutes shortly after the body of the victim was discovered, and for a short time on a later day. He was assert

14 CM 224849, Isaacs, 14 BR 197, 202 (1942), in which there was actually no reference whatever to the staff judge advocate for advice.

15 CM 229477, Floyd, 17 BR 149, 153 (1943); CM 319700, Cabading, 69 BR 23, 26 (1947). 16 Opinion 250.4, Oct. 16, 1918 (Dig. Op. JAG 1912-40, p. 253), which concerned a case where the approval was by the appointing authority's executive officer. 17 Subparagraph 87b of the Manual for Courts-Martial, U. S. Army, 1928. 18 Delno v. Market St. Ry. Co., 124 F. 2d 965, 967, hn 1, (9th Cir. 1942).

19 Lukon v. Penna. Ry. Co., 131 F. 2d 327, 329, hn 5, (3d Cir. 1942); Christie v. Callahan, 124 F. 2d 825, 839, hn 16 (C. A. D. C., 1941).

edly twice questioned in Pittsburgh after his apprehension there, the first time in his hotel room during the morning of July 2, and then at the "F.B.I." headquarters in Pittsburgh that same day from "just before noon" until "around sundown". Upon his return to Camp Phillips at about daylight on July 7, he was given an hour's rest and then allegedly questioned until noon; it is contended that after he had eaten, he was again questioned until "4 or 5 o'clock" in the evening. The accused was somewhat indefinite about the questioning that took place on July 8, but said he was again questioned for about 30 minutes just before he went into court. To support his contention that this questioning violated his constitutional rights, petitioner cites McNabb v. United States," where a conviction was vacated because it was based on confessions obtained after unduly long and persistent questioning. "For two days," said the Supreme Court, "they [the defendants] were subject to unremitting questioning by numerous officers."* However, the Supreme Court did not intend, by this decision, unduly to restrict questioning by law enforcement officers, for it added, "Congress has not explicitly forbidden the use of evidence so procured. But to permit such evidence to be made the basis of a conviction in the federal courts would stultify the policy which Congress has enacted into law."" (Italics supplied). This decision was again followed in a later case," but it also involved a conviction based upon a confession, and the confession was obtained after thirty hours of questioning. Since petitioner's conviction was not based upon a confession, (for he never made one), the McNabb and Upshaw cases are clearly distinguishable. The questioning of Richie, as he detailed it himself in the habeas corpus proceedings, was not so prolonged as to violate his constitutional rights. Nothing has been presented to show that the agents of the Federal Bureau of Investigation acted improperly in any way during the interrogations. No physical abuse of any kind is even asserted nor does it appear that petitioner was deprived of food or sanitary facilities nor that he was distraught or fearful at any time during the inquiry. Proper questioning of a criminal suspect is not grounds for reversal."

It is further asserted that the reviewing authority considered incompetent and prejudicial matter which was not a part of the record of trial. The reference is to mention in the review of the

20 McNabb v United States, 318 U.S. 332 (1943).

21 Ibid., at p. 345.

22 Ibid., at p. 345.

28 Upshaw v. United States, 335 U.S. 410 (1948).

24 Durant v. Hiatt, 81 F. Supp. 948, 950, hn 11, (N. D. Ga. 1948), aff'd 177 F. 2d 373; Richardson v. Zuppann, 81 F. Supp. 809, 813, 814, hn 7, (M.D. Pa. 1949), aff'd. 174 F. 2d 829.