vehicle (a blue volkswagon), and Wheeler following in a government truck which the latter had stolen at the former's instigation. Wheeler stated that he was not familiar with the truck's operating mechanism and applicant backed the truck to the warehouse door, where it was loaded with merchandise by civilian warehousemen; the load consisted of sixty hemp sacks (other witnesses said there were only thirty sacks), and Wheeler was "told" that these contained coffee, although testimony as to the contents was not admitted in evidence. He testified that he drove the truck away from the warehouse, followed by Ray; then the latter turned off, and as Wheeler reached a roadblock, he was apprehended by Austrian border guards, who held him and turned him over to American military police. A day or two later, according to Wheeler, Ray came to him for a discussion of means of getting the coffee-laden truck from an impounding lot in Salzburg where it had been taken by the military police. There was testimony concerning the apprehension of Wheeler at the road block, and the impounding of the coffee-bearing truck at the parking lot in Salzburg by the military police. Because of its "feel" and odor, the contents of the containers was asserted as coffee. Siegfried Sterzl testified that he was a guard at the parking lot on July 16, and that Josef Gerak was working with him as a guard; he stated that the truck was brought to the lot and he was told that the military police would get it later. The following evening, Sterzl said, two soldiers came for the truck and identified themselves as military policemen; Sterzl identified one of these soldiers as the accused. Corporal Holsopple testified that he was on military police duty on July 18 and found the truck abandoned on the street in Salzburg; he drove it to the military police headquarters. contained no sacks of merchandise at the time. It There was no evidence as to the activities of the accused after he purportedly took the truck from the parking lot, nor are reasons given for abandonment of the truck. There were stipulations at the trial as to the contents of the European Command circular which prohibited transactions of which the accused was charged, and as to the fact that the accused was not a member of the military police detachment. The defense presented two witnesses who testified that Wheeler's reputation for truth was bad, and the "fiancee" of the accused testified that Ray was with her in Berchtesgaden from 8 p. m. on July 15 until 5 a. m. the following day. The battalion motor officer of applicant's organization stated that the petitioner's character was excellent and his efficiency rating was superior; the battalion sergeant major corroborated these statements, and said that Ray had worked on a car in the unit motor pool on the morning of July 16. Two soldiers stated that they were with the accused at a bar in Salzburg on July 17, but were unable to say that he was at the bar all evening. There was a stipulation that the battalion commander of his organization would testify that the petitioner's character was excellent and his efficiency was superior. The applicant testified under oath and denied all allegations; he said he had nothing to do with Wheeler, and believed a case of mistaken identity was involved. Before the pre-trial investigating officer, he exercised his option to remain silent. Although they are only incidental to the petitioner's principal contention of an insufficiency of evidence to sustain conviction, the various errors and irregularities in connection with the trial and record, alleged by the applicant, will be considered first. The record of trial as originally prepared indicated an omission in Specification 1 of Charge II; however, there was no such omission in the charge sheet that was served upon the accused, and a certificate of correction covering the omission was later appended to the record. This certificate, signed by the president of the court, trial judge advocate, and assistant defense counsel (in the absence of the defense counsel, who had meanwhile returned to the United States), stated that the accused was arraigned under the correct specification, rather than under the deficient wording that appeared in the record. In any event, it does not appear that the accused could have been prejudiced by this omission; during the trial his counsel read each of the specifications to him for the purpose of having him deny them, and Specification 1 of Charge II was correctly read to him at that time. The witness, Wheeler, was permitted to refuse to answer two questions by claiming privilege under Article of War 24. These questions were designed to test his credibility, rather than to prove facts regarding the offenses charged against the accused. The Manual for Courts-Martial provides: "If a witness states that the answer to a question might tend to incriminate him, he will not be required to answer the question unless it clearly appears to the court that no answer to the question could have that effect." The court is given discretion, to some extent, although the law indicates that the witness will be favored in its exercise; the manner in which discretion is exercised cannot be asserted as grounds for setting a ruling aside except where it 1 Subparagraph 136b of the Manual for Courts-Martial U. S. Army, 1949. has been abused, that is, where no reasonable man could accept the reasoning of the court; no such abuse appears here. The petitioner presented no valid reason at the time of the trial, nor does he now indicate why the privilege against self-incrimination should not have been granted to Wheeler. The applicant asserts that it was not proved that the hemp sacks on the truck driven by Wheeler contained coffee, although there is a considerable amount of evidence to that effect. Nevertheless, it would have no bearing upon the conviction if the contents of the sacks had not been proved, for the essence of the specification (Specification 1 of Charge II) was a conspiracy illegally to transport coffee. The remainder of the wording, or that which charged acts toward accomplishment of the object of the conspiracy, could have been disregarded as surplusage,' for there was ample proof of the conspiracy. The accused calls attention to the fact that Gerak, guard at the Salzburg parking lot along with Sterzl, was not called as a witness during the trial; however, it is not contended that the accused was denied permission to call Gerak as a witness, nor that Gerak's testimony was then desired by the defense. The prosecution is not required to place upon the stand every person that may have some knowledge of the alleged crime, just as the defendant may exercise judgment in the matter of witnesses that he will call." 4 The petitioner asserts that witnesses were presented who accounted for his activities during the times of the alleged offenses. The rule has long been recognized in civil jurisdictions that where the trial court has the opportunity to observe a witness on the stand, the acceptance or rejection of the testimony by that court is conclusive on the question of credibility; although reviewing authorities in the orbit of military law weigh evidence, nothing has been presented in this case which is persuasive that the court was wrong in failing to give credence to this testimony. Allowance for variations in estimates as to time is customary in the deliberations of jurists of experience in evaluating errors of human recollections. 2 Delno v. Market St. Ry. Co., 124 F. 2d 965, 967, hn 1 (9th Cir. 1942). Hansen v. United States, 24 F. 2d 104, 105 (5th Cir. 1928); Tynan v. United States, 297 F. 177, 179, hn 2 (9th Cir. 1924), cert. den. 266 U.S. 604; Respublica v. Shryber, 1 Dall. (1 U. S.) 68 (1782). Harris v. Sanford, 78 F. Supp. 963, 964, hn 2 (N.D. Ga. 1947). Larsen v. Portland California, 66 F. 2d 326, 329, hn 1 (9th Cir. 1933). See also Metro-Goldwyn-Mayer v. Fear, 104 F. 2d 892, 897, hn 2 (9th Cir. 1939); United States v. Murphy, 16 Pet. (41 U. S.) 203, 213, hn 4 (1842); Lessee of Ewing v. Burnett, 11 Pet. (36 U. S.) 41, 50-51, hn 1 (1837). The conclusion just stated is likewise applicable to the petitioner's assertion that Wheeler fabricated testimony regarding a purported conversation on July 16; the inference is now drawn by petitioner that such a conversation was impossible, since it was supposed to have taken place some sixty miles from the location where another witness stated that the accused repaired an automobile that morning. Wheeler testified that he talked with the applicant late in the morning; the time at which the petitioner repaired the car is not clearly shown in the record, for the witness (Sergeant Dymozenski) said he did not remember the approximate time. Since it is not unreasonable to believe that Ray could have repaired a car at one place and then driven sixty miles to talk with Wheeler by late morning, the inference now urged by the petitioner is not persuasive. The applicant says that "the testimony of James Wheeler was erroneously recorded to show that the conversation that Wheeler was supposed to have had with Ray and Johnson dealing with the conspiracy was recorded to show that the other party with whom Wheeler discussed this plan was Jones. If the testimony had been properly recorded the testimony of Johnson as a witness for the defendant, would have borne out the innocence of the accused, and corroborated the testimony of the accused." Since the findings of the court were announced on the same day that the testimony in question was given by Wheeler, it is not plausible to believe the court had the reported record before it when it retired to consider the case; therefore, the court could not have been influenced by this purported error. And if the court reached its findings in view of Johnson's testimony, the only conclusion that can be reached is that the court failed to consider the testimony of Johnson as credible. Determination of the credibility of testimony is a matter within the discretion of the trial court, and nothing appears which would justify disturbing that body's determination. In any event, the petitioner has not now persuasively shown that the testimony of Wheeler was incorrectly reported, as authenticated by the appropriate officials, and in the absence of such a showing, the record will be presumed to be correct." In passing to the principal contentions of the petitioner, first consideration will be given to the acts alleged to have been committed on July 15, set forth in Specification 1 of Charge I (theft of a government vehicle) and Specification 1 of Charge II, (conspiracy illegally to export coffee). There was competent evidence of the commission of the offenses charged; that much 7 Mercantile Trust v. Hensey, 205 U. S. 298, 306, hn 1 (1907). of the evidence was given by a convicted accomplice does not render such evidence incompetent, for a conviction may be based entirely upon the uncorroborated testimony of an accomplice in the crime." Wheeler at the time of the trial had already been convicted, so that it is difficult to visualize a motive for false testimony on his part. It is still more of an enigma to imagine why he would point out Ray as his fellow-culprit, (where, as here, there is absolutely no indication of ill-will on his part toward Ray), unless the accused was in fact involved. There was an attempted refutation by the denial of the accused and the alibi presented by the accused's "fiancee," but the conflict was resolved against the accused by the court, and from a study of the evidence it cannot be said that the court acted improperly when it chose to believe prosecution's witnesses and disbelieve others." The mere fact that the accused was given a more severe sentence than that given his accomplice does not establish a sufficient cause for relief.10 In Specification 1 of Charge I, the petitioner was charged with larceny of property of a value of more than $50; the maximum punishment prescribed for a conviction under this charge is dishonorable discharge, total forfeitures, and confinement at hard labor for five years." In Specification 1 of Charge II, he was charged with conspiracy to violate standing orders, and acts in furtherance of this conspiracy; the maximum punishment for the violation of standing orders is confinement at hard labor for six months and forfeiture of two-thirds pay per month for six months;" the maximum punishment for conspiracy to commit such an offense is dishonorable discharge, total forfeitures, and confinement at hard labor for one and one-half years." Thus the maximum punishment for conviction under these specifications (July 15 offenses), alone would be far in excess of that adjudged and the conviction thereunder supports the sentence in its entirety. Therefore, it is unnecessary to consider the contentions of the accused concerning the other specifications under which he was found guilty." 8 Arnold v. United States, 94 F. 2d 499, 501, hn 2 (10th Cir. 1938); Caminetti v. United States, 242 U.S. 470, 495, hn 10 (1917). United States v. Groopman, 147 F. 2d 782, 785, hn 1 (2d Cir. 1945); United States v. Picarelli, 148 F. 2d 997, hn 1 (2d Cir. 1945). See also Harding v. United States, 182 F.2d 524, hn 1 (4th Cir. 1950); United States v. Ginsburg, 96 F. 2d 882, 886, hn 13 (7th Cir. 1938), cert. den. 305 U.S. 620. Cf. Dowell v. Jewers, 182 F. 2d 576, 579, hn 2 (5th Cir. 1950). 10 United States v. Mann, 108 F. 2d 354, 356, hn 3 (7th Cir. 1939). 14 CM 326834, Kindall, 75 BR 313, 319 (1948); CM 319511, Kersting, 68 BR 327, 334 (1947); CM 247391, Jeffrey, 30 BR 337, 341 (1944). Cf. Claassen v. United States, 142 U.S. 140, 146-147, hn 2 (1891); Whitfield v. Ohio, 297 U.S. 431, 438, hn 3 (1936). |