on the head with a hammer or other instrument. Josef Ohnesorg said that he was on duty with Lynn on the night of June 25, and accompanied him to the hospital upon a call being received concerning the accident. He said "a young physician came out of the hall leading to the operation room and made a remark approximately to the effect that again someone was injured by the Americans." Affiant added, "I do not recollect the exact wording of his remark. Lynn also understood the sense of his remark and, therefore, got excited." Ohnesorg stated that Agent Miller arrived, and that the visit to the operating room by the affiant was upon request of Miller. Ohnesorg added, "I did not see the doctor or any one of the persons present in the operating room hit the head of the injured man with a hammer or other instruments. I never and to no one made any remarks to this effect." Agent Miller, in his affidavit, said that he went to the hospital on the night of June 25 at the call of Lynn, and talked with Lynn for about fifteen minutes after he arrived there; he said, "At no time did Lynn tell me that any doctor had made disparaging remarks about the Americans. At no time did any civilian policeman inform that the doctor was hitting the victim on the head with a hammer. At no time did I myself hear any noise of hammering from the operating room. At no time did Lynn mention the hammer incident to me." In view of these affidavits, it must be concluded that the court did not act improperly in failing to permit Lynn's testimony to influence its view of the credibility of Dr. Goetziner's testimony. The applicant next says, "If the man I am supposed to have killed had correct medical care he would have lived." This allegation, like the assertion of perjury, is insufficient for consideration because it is unsupported by anything more than the mere statement of the petitioner. Nevertheless, even if the facts were such as those alleged, the matter upon which applicant relies would have been no defense at his trial, and hence cannot justify the granting of relief at this time. It is held that "Negligence, mistake, or lack of skill on the part of an attending physician or surgeon affords no defense to a charge of homicide against the person inflicting the injury," if the wound is of a mortal nature (here, a heavily bleeding skull fracture with part of the brain destroyed, and a bone splinter piercing the brain), and where the alleged maltreatment was not "the whole cause of death." The rule was stated by a New York court as follows: "If a felonious assault is operative as a cause of death, the casual co-operation of erroneous surgical or medical treatment 26 Am. Jur. 193-194, Homicide, Sec. 51. does not relieve the assailant from liability for the homicide. It is only where the death is solely attributable to the secondary agency, and not at all induced by the primary one, that its intervention constitutes a defense." The final contention of the petitioner is that he "never touched" the alleged victim. The truth of this assertion is disputed in his own pre-trial statement; it is shown by other evidence that the applicant, upon the approach of the homicide victim, said to the co-accused, "Let me take care of this," then attempted to strike the victim and fell to the ground from the impetus of his unsuccessful attempt, that it was Rainey, companion of the petitioner, who struck the fatal blow. Regardless of which action occurred, applicant is responsible, for the law is settled that one who aids or abets a crime, as here, is a principal,' and may be convicted as though he had been the actual perpetrator. That the applicant was an accessory and accomplice within the judicial meaning of the term, and therefore punishable as a principal, cannot seriously be questioned. His suggestion that he take so-called "truth serum" is not acceptable since these methods of interrogation are not yet considered sufficiently scientifically reliable for acceptance as evidence in most jurisdictions. They are rejected in federal courts. Moreover, even if such questioning were to result in an answer that not Tolin but Rainey struck the lethal blow under the facts and applicable law stated above, petitioner still would not be absolved. Although not listed among the grounds upon which petitioner seeks relief, he asserts elsewhere that his counsel "asked Doctor Goetziner whether the man died of pneumonia and and [sic] answer yes or no, but he could not say yes or no which points out that the man could have had such a disease previously and is possible that it could have caused his death." This contention of the applicant is not substantiated by the record. During accused's second trial, the prosecution elicited the information from Dr. Goetziner that the death of Anton Poth was caused by hypostatic pneumonia, brought on by bad breathing, and that this was caused by a swelling of the brain caused by an injury from a blunt instrument. No such question as that alleged by the petitioner is found in the record of the second trial. In the first trial, however, the defense did ask a question substantially as stated by the applicant, but the question was withdrawn be People v. Kane, 213 N. Y. 260, 107 N.E. 655, 657, hn 2 (1915). Cf. Hamblin v. State, 81 Neb. 148, 115, N. W. 850, hn 4, 16 Ann. Cas 569 (1908). 18 USC 2; Madigan v. United States, 23 F. 2d 180, 181, hn 1 (8th Cir. 1927); Greenberg v. United States, 297 F. 45, 48, hn 7 (8th Cir. 1924). fore being answered when the law member of the court ruled that the "yes or no" answer would be subject to explanation on the part of the witness. The applicant also asserts that any doubt as to guilt should be resolved in favor of the accused, and of course this principle has long been recognized in our judicial system. However, the doubt must be a reasonable doubt rather than one that is fanciful or ingenious; courts sit as well to convict the guilty as to acquit the innocent." The petitioner says, "There are so many points in my trial which shows [sic] that it was bungled up, and if any person with common sense would read my record of trials they would understand." This statement impels the observation that the records of trial indicate that the accused was represented by a competent attorney, of higher rank than the trial judge advocate, and that the records fail to reveal that any stone was left unturned by the defense counsel in adequately representing the interests of the accused. Although the court could have adjudged a sentence of twenty-five years' imprisonment, it was extremely lenient in the sentence given. Little sympathy can be had for one who, even though somewhat inflamed by alcohol," deliberately and without provocation, commits a brutal assault upon an innocent person. Tolin's statement reveals that from previous experience he knew that drinking released his combative impulses. * * Good cause for 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 Corporal Charles B. Ray, RA 6392304 (CM 339327) • Subparagraph 78a of the Manual for Courts-Martial, U. S. Army, 1949. • Couchois v. United States, 142 F. 2d 1, 2 (5th Cir. 1944). 10 See Bishop v. United States, 107 F. 2d 297, 301, hn 6 (App. D. C. 1939); Nestlerode v. United States, 122 F. 2d 56, 59-60, hn 9 (App. D. C. 1941). The applicant was tried by general court-martial at Camp Truscott, Austria, on November 4, 1949, charged with violations of Articles of War 94 and 96. Charge I alleged violations of Article of War 94; the first specification concerned the theft of a government vehicle on July 15, 1949 in conjunction with Private James W. Wheeler, and the second alleged the theft of a government vehicle on July 17 in conjunction with Corporal Samuel H. Spalter. The specifications of Charge II (Article of War 96), alleged: a conspiracy with Private Wheeler on July 15, illegally to export coffee from Austria to Germany in violation of standing orders, adding acts toward accomplishment of the conspiracy, in Specification 1; an attempted bribery in Specification 2; and the impersonation of a military policeman in order to defraud on July 17, in Specification 3. Ray was found guilty under both specifications of the first charge, except that the implication of Corporal Spalter was deleted; and he was found guilty of the first and third specifications under the second charge, but not guilty of the attempted bribery. He was sentenced to dishonorable discharge, total forfeitures, and confinement at hard labor for two years and six months. The reviewing authority approved the findings and sentence. After a board of review constituted under Article of War 50, had held the record of trial legally sufficient, the sentence was ordered executed. The petitioner, through counsel, now asks relief under Article of War 53, requesting that a new trial be granted. He contends that the evidence was insufficient to support the findings as to Specification 1 of Charge I (vehicle theft on July 15) and as to Specification 1 of Charge II (conspiracy and illegally exporting coffee). Concerning the latter specification, he avers that the alibi he presented at the trial was uncontradicted; as to the former, he says that "if the Court had found the accused guilty of only Specification 1 of Charge I, the sentence imposed is completely out of line with the sentence imposed upon the other convicted participant in the alleged conspiracy." In regard to the other specifications under which the accused was found guilty, he asserts that the findings were erroneous in that the only witness who identified the accused was Siegfried Sterzl, German civilian guard, and the only evidence upon which the court could base a conviction was the testimony of Sterzl; that this individual has since made an affidavit that he was wrong in his identification. The applicant attaches a copy of Sterzl's affidavit, which states that the affiant identified the accused at the trial, but "later in December 1949, I saw the real Perpetrator on the main bridge in Salzburg,” and “in the month of January 1950, I declared before two officers of my mistake in identifying the said Cpl. Ray as the real Perpetrator." The affidavit of Josef Gerak is also appended to the petition. This man was a civilian guard who was working with Sterzl at the time of the offenses alleged in Specification 2 of Charge I and Specification 3 of Charge II. Gerak states that he was unable to identify Ray as the perpetrator of the crime. In addition to his main contentions, the petitioner makes the following allegations concerning the trial proceedings and the record: (1) That the record of trial indicates an omission in Specification 1 of Charge II in the arraignment, so that Ray was arraigned for being the driver of the coffee-bearing truck, whereas the evidence clearly indicated that Wheeler was the driver; (2) that Wheeler, a witness, was permitted by the court to refuse to answer questions by claiming privilege under Article of War 24, thus permitting "this recruit, convict, to tell the court and the court officers what questions he would answer and what questions he would refuse to answer;" (3) that it was never proved at the trial that the sacks on the truck driven by Wheeler actually contained coffee, as charged; (4) that the prosecution failed to call Gerak as a witness, and that Gerak's testimony would have been favorable to the accused; (5) that testimony of two soldiers concerning petitioner's activities on the night of July 17 was disregarded by the court; (6) that the witness, Wheeler, was obviously untruthful regarding a portion of his testimony, because Wheeler said the accused conversed with him on the morning of July 16, and another witness testified that Ray was working on an automobile at another place (stated by petitioner to have been sixty miles from the place of the purported conversation with Wheeler) that morning; and (7) that Wheeler testified that a soldier named Johnson was a co-conspirator, but that this was erroneously shown in the record as "Jones," and that when Johnson was later called by the defense and denied implication, the denial should have corroborated the testimony of the accused. The record reveals that much of the testimony for the prosecution was given by Private Wheeler, a military policeman and alleged co-conspirator, who had previously been tried and convicted for his implication in the offenses charged against the accused. Wheeler said that he and the applicant had discussed taking merchandise from Austria into Germany, and that he met Ray on July 15 (also stated as June 15), 1949, at Camp Truscott; he continued that the same night the petitioner took Wheeler to a warehouse in Salzburg, with the accused driving his own |