she had never before seen accused. Accused was then returned to the guardhouse and placed in a cold cell. At about 11:00 a. m. on the same day he was turned over to Agent Pryschiller, who again took accused to the hospital at pistol point and confronted Anna Lang with him. Pryschiller, acting as interpreter, told accused that Anna Lang said that accused was the man who assaulted her, but at the same time Anna Lang shook her head indicating the contrary. Accused asked the person in the adjacent bed, who was Bertha Tydecks, what was being said, and Bertha Tydecks stated that Anna Lang was refusing to identify accused. This procedure was again repeated about 30 minutes later. It is further stated in the affidavit that, after accused had been sitting handcuffed in a chair for about three hours, at about 4:30 p. m. Agent Ellmer entered the room, hit accused over the head with a club, knocked him off the chair, and kicked him several times. One of the blows loosened a tooth which had to be removed later. Through fear of death accused signed the statement prepared by Ellmer and Pryschiller. He was not informed of his rights under Article of War 24, did not swear to the statement, and did not see Captain Whelan until the Captain appeared in the courtroom as a witness against him. 7. Subsequent to the filing of the petition, under authority of Paragraph 102, Manual for Courts-Martial, 1949, additional investigation was made, and the results thereof have been considered in taking action on accused's application. This investigation consists of certificates and statements from the following witnesses: Captain T. A. Thompson, Anna Lang, Bertha Tydecks, Chief of Kitzingen Hospital, Private First Class Ernest Smallwood, Agent Andrew J. Ellmer, Agent Daniel Pryschiller, Dorothea Nitschmann, Captain T. F. Whelan, Ernst Koehler, and Captain J. G. Lee. The substance of the information so obtained is summarized below. Captain Thompson, Commanding Officer of the 90th Military Police Service Company, interrogated Anna Lang on the night she was stabbed while she was on the examining table at the hospital. She gave Thompson part of the name of accused. Upon inquiry Thompson learned accused's full name and within 24 hours apprehended him. Thompson advised accused of his rights against self-incrimination. He then informed accused of the nature of the evidence against him, and accused admitted complicity in the assault on Anna Lang. Thompson turned over accused to Criminal Investigation Division agents, who were to write up the statement. Thompson made no threats or promises and used no force. On 18 October 1948 he took accused to the hospital where Anna Lang identified accused as her assailant without intimidation and under conditions indicating that identification was spontaneous. Anna Lang reaffirmed the fact that it was accused who assaulted her and attested that no threats were made to induce her to identify accused. She did not tell any person that it was someone other than accused who had assaulted her. She does not know a Recruit Brown or a Bertha Tydecks, but recalls that some girl named "Berta" for a period occupied the hospital room with her. Bertha Tydecks stated that Anna Lang told her, while in the hospital, a version of the affair consistent with Anna Lang's testimony at the trial. Anna Lang told witness that when Captain Thompson first approached her in the hospital she did not want to say who stabbed her, but then Anna Lang thought it would be better to tell the truth; accordingly she identified accused and has never denied such identification. Witness has never seen accused. She talked to a soldier named Brown but only told him that she was in the hospital room with Anna Lang. Witness did not enter the hospital until 28 October 1948. The Chief of the Kitzingen Hospital certified that Anna Lang entered the hospital on 16 October 1948 and Bertha Tydecks on 27 October 1948. Smallwood reaffirmed his identification of accused as Anna Lang's assailant. Agent Ellmer of the Criminal Investigation Division attested to the voluntary nature of the confession taken from accused and corroborated in general his testimony at the trial. He denied in detail the particulars of accused's present allegations against him. with special reference to the use of force upon accused and coercion upon Anna Lang. Ellmer stated that it was he who spoke German and not Pryschiller, and, accordingly, interviews with Anna Lang had been conducted by Ellmer. It was he who confronted Anna Lang with accused on 20 October 1948. Pryschiller confirmed his former testimony and attested that the confession taken from accused was voluntary. He specifically denied the use of force upon accused and stated that at no time was a weapon held on accused while he was being transported to the hospital. Dorothea Mitschmann was the stenographer who was present in the hospital room when Anna Lang was confronted with accused by Agent Ellmer. She corroborated the prompt identification of accused by Anna Lang and said that there was no conversation between them. Captain Whelan confirmed his previous testimony and added that as Post Prison Officer accused was in his custody prior to trial. Whelan made an effort to obtain for accused the services of a civilian lawyer named Wimberly. According to Whelan, Mr. Wimberly interviewed accused at the stockade, and then requested permission to defend him and accept a fee for his services, which request was denied by Mr. Wimberly's superiors. Ernst Koehler, a housekeeper and fireman, was present when Agent Pryschiller removed the handcuffs and interviewed accused. He attested that Pryschiller did not beat accused; he did not remember that Agent Ellmer had anything to do with accused on that day. Captain J. G. Lee, a member of the Judge Advocate General's Corps, was aboard the USAT C. C. BALLOC on 24 February 1949 and took the acknowledgment of Recruit Brown to the affidavit submitted by accused with his petition. Captain Lee's account of the taking of this affidavit was that accused, then in confinement on the ship, had asked permission to interview a lawyer or a member of the Judge Advocate General's Corps. Responding to this request, Captain Lee entered the prison cell occupied by accused and Brown, whereupon accused condemned the courtmartial system and everyone connected with his case and informed Captain Lee of the legal principles involved; he stated that it was his intention eventually to "beat the rap" at any cost. Accused presented Captain Lee a draft of the affidavit which was later acknowledged and signed by Brown. Captain Lee presented the statement to Brown, who said that it was correct. Thereupon accused requested Captain Lee to have it retyped before execution in order that it might comply with the legal requirements. 8. It is significant that in the affidavits submitted in support of accused's petition Recruit Brown fixes the time of the alleged conversation of Bertha Tydecks and Brown with Anna Lang as having been on the very day accused was tried. Brown also alludes to Bertha Tydecks being present in the hospital at the time of Anna Lang's identification of accused there. A comparison of accused's record of trial and that of Brown (CM334720), shows that both were assigned to the same organization and both were tried at Kitzingen, Germany. Accused was confined in the Frankfurt Military Post Stockade on 19 October 1948. Brown was not confined until 9 December 1948 and was tried on 29-30 December 1948. Other evidence hereinabove discussed conclusively shows that Bertha Tydecks did not become a patient in the hospital until 27 October 1948. These circumstances, taken with the information contained in the affidavits of Captain Lee and Bertha Tydecks, cast substantial doubt upon the veracity of Brown's affidavit. 9. The provisions of Article of War 70 are directory and not mandatory. Although it does not appear that there was a failure substantially to comply with the Article, if there were such a failure it would not have deprived the court-martial of jurisdiction or vitiated the court's findings and sentence. (Humphrey v. Smith, 336 U. S. 695, 93 L. Ed. 774). 10. Accused in his application under Article of War 53 for the first time charges personnel of the law enforcement agencies with the use of physical violence upon him and with the employment of threats and other forms of intimidation against both him and the principal complaining witness. These allegations of accused are improbable in view of the weight of the evidence to the contrary. There is little doubt that accused's statement was voluntary and that Anna Lang's identification of him as her assailant was made without compulsion. 11. It was not necessary that all available witnesses against accused testify at the trial. It is enough that the court be satisfied beyond a reasonable doubt that accused was guilty of the offense charged (MCM, 1928, par. 78a). The competent evidence adduced was sufficient to meet this requirement and to support the court's findings of guilty. The court concluded by its findings that accused committed an assault aggravated by the concurrence of a specific intent to murder (MCM, 1928, par. 1491). No reason is perceived for disturbing its conclusion. The record is free of error injuriously affecting the substantial rights of accused. The sentence is not excessive. 12. In the trial of accused the procedures provided by military law were applied in a fundamentally fair way. Accused was defended by counsel of his own selection. There is no question that counsel gave accused complete loyalty, served him in good faith to the best of their ability, and that the service of counsel was of such a character as to preserve the essential integrity of the proceedings as a trial in a court of justice (U. S. v. Ragen, 176 F. 2d 579 (U. S. C. A. 7th Cir)). 13. Good cause for the granting of a new trial or alternative relief under Article of War 53 does not appear, and accordingly. accused's petition will be denied. E. M. BRANNON Major General The Judge Advocate General CSJAGY CM 305097 31 January 1950 MEMORANDUM OPINION SUBJECT: Application for New Trial or Other Relief in the Case of Private Paul J. Thomas, 38045983 (CM 305097) Accused was tried by general court-martial at Paris, France, from 14 to 17 May 1945 and from 4 to 5 June 1945 and was found guilty of two offenses of murder, in violation of Article of War 92. He was sentenced to be dishonorably discharged the service, to forfeit all pay and allowances due or to become due and to be confined at hard labor for the term of his natural life. The reviewing authority approved the sentence. Pursuant to Article of War 50%, the record of trial was examined by a board of review in a branch of my office with the European Theater of Operations and held legally sufficient to support the findings of guilty and the sentence, which then was ordered executed. By subsequent clemency action in the Department of the Army so much of the sentence to confinement as exceeds 30 years has been remitted. Accused now presents an application for new trial or alternative remedy under Article of War 53. 2. The record of trial shows that on the evening of 16 March 1945 Sergeant Gilbert N. Couch and Private First Class Lloyd W. Baldwin of the 386th Military Police Battalion, Seine Section, were on duty patrolling with a jeep the highways between Paris and Pontoise, France. They were armed with pistols and were wearing Military Police brassards. One highway led through St. Denis, France, which was about five miles from Paris. In St. Denis the Cafe du Commerce was located on the corner of the intersection of Rue Paris and Rue Gueldres. The cafe was small with two doors, one opening on Rue Paris and the other on Rue Gueldres. The doors gave entrance to a barroom off of which were two other rooms, one used as a restaurant. Front windows permitted light from the cafe to shine outside. Baldwin testified that at about 10:15 p. m. he and Couch parked the jeep on Rue Gueldres and entered the Cafe du Commerce. Couch intended to drink some coffee which was to be prepared with ingredients carried by him and with hot water from the cafe. Couch stood at the bar arranging for the preparation of the coffee, while Baldwin entered the restaurant to examine the passes of two soldiers named Wilson and Watson, who were there in company with two French women. After determining that the soldiers' passes were in order, Baldwin returned to the barroom |