through clemency action. Petitioner has been on parole since July 26, 1949.

*

Szczutkowski now presents an application for relief under Article of War 53 specifically requesting a “re-examination of the record of trial * * in the spirit of new intent of Congress, as evidenced in Public Law 759, 80th Congress and Public Law 506, 81st Congress". He contends generally: that his war record was not considered by the court; that procedures for safeguarding rights of accused as provided in Public Law 759, 80th Congress and Public Law 506, 81st Congress were not followed at the trial; that court members were not versed in legal procedure; that rules of admissibility of evidence were ignored; that testimony of witnesses of dubious credibility was accepted; and that there was no adequate defense.

The record of trial discloses that on the afternoon of June 21, 1945, the accused, a member of the 194th Glider Infantry Regiment, 17th Airborne Division, mentioned something to Private Fred L. Dominquez "about selling a gun to pay a debt he [the applicant] owed." Later that day he was in the room of Private Michael Prokurat with a pistol which "seemed" to be a .25 calibre model and asked whether or not he should take the gun to town with him. That evening the petitioner, Dominquez and Prokurat went to the town of Luneville, France. They stopped at a cafe outside the gate of the post where the accused is quoted as stating that he had a gun and "wasn't going to take any of anybody." In town they visited a bar where they drank some more and then stopped at the house of a French civilian where they drank "one bottle of wine, maybe more." An argument ensued with the Frenchman and Szczutkowski "pulled out a gun and fired one round in the floor." Dominquez told him to put the gun away, remarking "we're staying out of trouble." Upon leaving the house they met Technician Fourth Grade Kasmir F. Sparks, Private John W. Wojewoda and another soldier named Binns. The group proceeded to another cafe and then went to the Brasserie Stanislaus Cafe.

At about 9:00 p. m. of the same evening Private Edward N. Weitzel and Maurice L. Mathews and Corporal Earl K. Cavanah also went to the Brasserie Stanislaus Cafe. Four soldiers from the 82nd Airborne Division, one of whom was Dominquez, were in the backroom of the cafe. Dominquez was throwing glasses against the wall. When Weitzel and Mathews entered the backroom, Dominquez arose from a table, came over to Weitzel and told him that he didn't want him annoying his woman. When the latter tried to placate him, Dominquez said, "You don't have to get

so God-damned smart about it" and struck a blow which glanced off Weitzel's chin and hit Mathews. Dominquez then grabbed Mathews who twice told him "to take his hands off." At that moment, one of the men from the 82nd Airborne Division (believed by Weitzel to be Dominquez) said, "We don't go for that —. Take your hands off". Mathews again repeated, "Im telling you to take your hands off". Almost immediately thereafter a pistol was fired and Mathews crumpled to the floor with a bullet wound in his abdomen. Weitzel testified that prior to the shooting Dominquez had his left hand on Mathews and that "his [Dominquez's] right hand dropped just before the shot." It was stipulated that if the proprietor of the cafe were present he would testify in part that a person about the same physique as Dominquez made a motion as if to draw a pistol from inside his coat but he did not actually see a gun and that he [the tavern-keeper] found an empty .25 calibre cartridge case near the spot where the deceased had lain. Mathews was taken to a dispensary and from there removed to the 19th General Hospital at Mancy, France. He died the next day at 2:30 a. m. from hemorrhage caused by a .25 calibre bullet wound. The medical officer who performed the autopsy, testified that in his opinion the body of the deceased was slightly rotated to the right at the time of the shooting in order to produce a wound of the nature involved although it was possible that the shot was fired "completely laterally."

Just prior to the shooting the positions of the persons in the backroom were: Dominquez was in front of Mathews, Weitzel was to the right of Mathews and Cavanah was to the right of Weitzel. Two unidentified men from the 82nd Airborne Division were in back of Dominquez. Sparks was not in the cafe at the time of the shooting. Prokurat was either in the front of the cafe at the bar or "downstairs in the latrine." Wojewoda was in the front of the cafe at the bar. Dominquez, according to his testimony, was likewise at the bar. The accused was in the cafe but his exact position was not established. Weitzel did not see a pistol in Dominquez's hand. He did not see anyone with a pistol or the flash of the shot or the person who fired it. Corporal Cavanah testified that he saw the flash from the shot "directly in front of Mathews and a little to the right."

Immediately after the shooting, the accused came running out of the cafe followed by Dominquez and Prokurat. As he ran out, he said to Technician Fourth Grade Sparks who was standing outside the cafe, "Sparky, I just shot a man" and showed him a .25 calibre "weapon". This statement of Szczutkowski was also heard by Dominquez. The petitioner was wearing an "ETO" jacket and

a polo shirt with no tie. When the shot was fired, Wojewoda, who was at the bar in the front of the cafe, turned toward the backroom and saw "two fellows", one of whom was Dominquez, come out. The man with Dominquez was wearing an "ETO" jacket and no tie. He was shorter than Dominquez. He showed Wojewoda something resembling a weapon which he had in his hand. Wojewoda was not able to identify the man because of the darkness. It was demonstrated at the trial that the accused was shorter than Dominquez,

Szczutkowski, Dominquez and Prokurat left the cafe with Prokurat walking about five of six paces to the rear of the others. Prokurat saw a pistol "fly over the wall" and it seemed to him like "Dominquez throwed it over". It was not stated whether or not the latter had previously received it from the petitioner. After walking a little further Dominquez left the group and the accused and Prokurat returned to camp. The applicant told Prokurat that "I shot a man" and tried to get the latter to "back him up that he didn't have a pistol on him." He remarked that "he was going to turn himself in." The following morning the petitioner saw Sparks at breakfast time and asked "Sparky, what did I do last night?" The latter replied, "Well, you told me you shot a man." Accused then said: "Well, if I shot a man I might as well give myself up. They got the wrong man in the guardhouse. What would you do?" Sparks replied that he would turn himself in. Szczutkowski later gave Prokurat a .25 calibre pistol which bore the number "10474" and 49 rounds of ammunition. They were later taken by Sparks to Major Rowan, the investigating officer. The officer could not tell whether the pistol had been fired recently but the chamber was fairly clean.

* *

**

The same day Major Rowan found a .25 calibre pistol bearing the number "355117" at the spot where Dominquez was alleged to have thrown a pistol on the night of the homicide. He could not determine whether it had been fired recently because it had been in water. For the same reason, fingerprints were obliterated. Subsequent to the trial the Staff Judge Advocate of the convening authority caused a ballistics test to be made to determine which pistol, that surrendered by the accused, that which allegedly was thrown over a fence by Dominquez or neither, fired the lethal bullet. A test was not made at the time of the trial due to the belief that the division would be moved before the test could be completed and because of the provisions of a current information circular to the effect that ballistics experts would not be required to attend trials. The report of the ballistics test does not state that the projectile or the expanded cartridge case used for com

parison were those involved in the homicide and identifies the weapons tested as numbers "10474" and "355177". The report indicates that the specimen bullet was fired from the .25 calibre pistol numbered "355177" which, if the numerical designation is erroneous and should be "355117", was the weapon found by the investigating officer and not the weapon surrendered by the accused. However, it was in evidence that the petitioner "had more than two" .25 calibre pistols.

The night of the shooting, Weitzel went to the military police who subsequently upon his accusation and identification of Dominquez as the offender took him into custody. Weitzel testified that he accused Dominquez "because all the arguing was carried on with Dominquez” and that "through rage" he "said he was the man". In his testimony Dominquez denied seeing the accused with a gun when he came out of the cafe or that either he or the petitioner rid themselves of a gun at that time. He further denied that he saw or knew that a pistol was thrown away as he and the applicant left the scene of the homicide; that he placed his hands on anyone in the cafe or that anyone placed his hands on him; or that he had seen the pistol which was found near the place it allegedly was thrown over the fence. He admitted that on the night in question that he had "five glasses of beer, one shot of calvados and about four shots of cognac and one bottle of wine." As for the accused, the testimony indicated that he was sober and "high" but not drunk. The sobriety of the deceased was described as being that he knew everything he was doing. The accused did not testify at the trial but in a post-trial interview with the Division Judge Advocate stated that at the time it was alleged he committed the offense he was drunk and could remember nothing about it. From an evaluation of the above evidence, it is manifest that the case against petitioner was compellingly proved at the trial among the strongest evidence against him being his own numerous criminating admissions, including among other things the evidence of a guilty mind disclosed by an effort at concealment of his possession of a weapon.'

The record of trial supports Szczutkowski's contention that his military record was not offered in evidence. Nevertheless, there was reference therein to the absence of prior convictions by courts-martial. Good character, when considered in connection with other evidence in the case, may generate a reasonable doubt. The circumstances may be such that an established reputation for good character, if it is relevant to the issue would alone create a

1 Wharton's Criminal Evidence, Sec 115 and U. S. v. Gottfried et al (two cases), 165 F. 2d. 360, 363, hn 1, (2nd Cir. 1948) cert. den. 333 U. S. 860.

reasonable doubt, although without it the other evidence would be convincing. However, evidence of good character is to be considered like any other evidence. The law does not invest an accused with a presumption of good character and when he attempts to prove his good name he throws open the entire subject which the law has kept closed for his benefit and makes himself vulnerable through cross-examination of his character witnesses or through contradictory witnesses where the law otherwise shields him. "Thus while the law gives the defendant the option to show as a fact that his reputation reflects a life and habit incompatible with the offense charged, it subjects his proof to tests of credibility designed to prevent him from profiting by a mere parade of partisans.""

Proof of Szczutkowski's asertedly creditable military service, had it been offered in the record, (passing the question as to inadmissibility on the ground that it was creditable performance in a particular field rather than proof of a general reputation), would doubtless have permitted the prosecution to show in rebuttal such evidence as to a general reputation for poor character as would be established by his three prior trials by summary courtsmartial (which would not otherwise be admissible) as well as his civilian record of one conviction for larceny and several convictions for drunkenness. In view of the compelling evidence of guilt, such proposed defense evidence, had it been before the court, would have gone primarily to mitigation or extenuation rather than to creating a reasonable doubt as to his guilt. It cannot be said that counsel for accused is to be condemned for any error by reason of failure to offer the evidence mentioned. Error is not shown as a "demonstrable reality". Moreover, the reviewing and confirming authorities have previously considered and apparently modified the sentence after consideration of matters in extenuation, among them the item urged by applicant. Later the modified term of confinement was again greatly reduced by clemency agencies of the Army. No prejudice to the petitioner, therefore, can be ascertained in this respect.

Petitioner seeks to bring his case within the provisions of Public Law 759, 80th Congress (the 1948 amendment of the Articles of War) which became effective February 1, 1949, and Public Law 506, 81st Congress (the Uniform Code of Military

2 Edgington v. U. S., 164 U.S. 361, 366, (1896); Kreiner v. U. S., 11 F. 2d 722, 726, hn 10, (2d Cir. 1926), cert. den. 271 U.S. 688, 70 L. Ed. 1152, 46 S. Ct. 639 and Mannix v. U. S., 140 F. 2d. 250, 253, hn 5, (4th Cir. 1944).

SU.S. v. Antonelli Fireworks Co. Inc., et al, 155 F. 2d, 631, 639, hn 17, (2d Cir. 1946). 4 Michelson v. U.S., 335 U. S. 469, 475, 479, hn 2, (1948).

CM 281037, Gibson, 54 BR 37, 42, and CM 196371, Steenberg, 2 BR 349, 356, 357.

• Buchalter v. New York, 319 U. S. 427, 431, hn 3, (1943).