15 Although the only questions presented by the accused in his application are those set forth herein, the entire record of his court-martial has been studied in an effort to discover any evidence of prejudicial error. The proceedings disclose that during the trial the procedures provided by military law were applied in a fundamentally fair way. This, for those subject to that judicial system, constitutes due process of law. The court had jurisdiction over the petitioner and over the offenses of which he was convicted. There was no error which injuriously affected the substantial rights of the applicant, and the evidence supports the findings. The sentence was legal and not excessive. On the basis of all the available facts and circumstances, therefore, it cannot be concluded that any injustice has resulted from either the findings or sentence. In this connection it is noted from the accused's personnel record that the instant offense is not his maiden effort at smuggling as he was previously convicted for that illegal activity. Able oral argument by Jesse F. Warren, Jr., Esquire, of Tallahassee, Florida, on behalf of the petitioner, has been considered in this opinion. Good cause for the granting of relief under Article of War 53 does not appear; accordingly, the petition will be denied. FRANKLIN P. SHAW Major General, USA Acting The Judge Advocate General JAGY CM 333001 MEMORANDUM OPINION 13 November 1950 SUBJECT: Application for Relief under Article of War 53 in the Case of Private First Class William Carson Manis, RA 14225252 (CM 333001) Applicant was tried by general court-martial at Headquarters Yokohama Command, Yokohama, Japan, on August 9, 10, 11, 13, 16, 17, 18 and 19, 1948, found guilty of murder, in violation of Article of War 92, and sentenced to dishonorable discharge, total forfeitures, and confinement at hard labor for life. After the reviewing authority had approved the sentence, a board of review 15 Reilly v. Pescor, 156 F. 2d 632, 635, hn 8 (8th Cir. 1946); United States ex rel Innes v. Hiatt, 141 F. 2d 664, 666, hn 6 (3d Cir. 1944). constituted under Article of War 5011⁄2 held the record of trial legally sufficient; the sentence, thereupon was ordered executed. Accused now presents an application for relief under Article of War 53. 66* * ** Manis contends that his conviction and sentence were unjust and asserts in substance that: he is innocent and requests that he be allowed to take any form of "lie detector" test to prove his innocence; he was convicted on the evidence of two Japanese prostitutes, which evidence was the sole evidence identifying me with the homicide. Their character and reputations was such as to make them unworthy of belief in a court of justice. during the pre-trial investigation he was allegedly subjected to unfair treatment i.e., assertedly being clothed differently from the other soldiers in a line-up, which he says resulted in his being identified as the culprit by prosecution witnesses; and his request for a "lie detector" test during the pre-trial investigation was denied. Manis further states that his request for a "lie detector" test is based upon "the authority of Manual for Courts-Martial, U. S. Army, 1949, Chapter XXII, Section 102 (6), which provides in part that 'the Judge Advocate General may cause such additional investigation to be made and such additional evidence to be secured as he may deem appropriate.'" Accompanying his petition are several affidavits from residents of Tennessee, which attest to applicant's good character and reputation. The record of trial reveals that on the night of April 5, 1948, Captain (Chaplain) John A. Ryan, was shot to death at the Ikebukuro Rotary, known as First Cavalry Circle, which is a few hundred feet from the main gate of Sugamo Prison, Tokyo, Japan. The lethal missile, a .25 caliber automatic pistol bullet, was found within the lung. At least two shots were fired at close range. The hour was approximately 8:10 p. m. and it was growing dark. The proceedings of the trial may be summarized as follows: Miss Seiko Motohashi, a Japanese woman, also known as "Mary," testified that she was a "street girl" who earned her livelihood by associating with allied personnel. She was acquainted with Chaplain Ryan and considered him her friend. On the night of April 5, 1948 at about 8:10 or 8:12 p. m., she observed the priest near Ikebukuro Rotary talking in an angry voice to applicant. After she had passed by them she heard a gunshot, looked in their direction, heard the chaplain shriek in agony, noticed him quiver as if about to fall and saw accused leave the scene toward the Rotary. She had previously told a different story, which was not under oath, in an attempt to avoid being confined in a Japanese police station as a witness during an investigation and thus be unable to support her mother and child. The variance in the two versions was that she had originally stated that another girl had told her of the incident and when pressed for the truth when the one named denied seeing the homicide, she admitted that she herself was the actual eyewitness. Reiko Maeno, also a prostitute, testified that she had been a friend of Manis since January, 1948 when he had "saved" her from a drunken soldier. On a previous occasion the priest had reprimanded accused for being in her company. She related that on the night in question petitioner was in the act of fondling and kissing her in an effort to secure intercourse which she had previously refused, in the absence of payment, when Chaplain Ryan approached them and stopped. (The color of the blouse she wore was red). Deceased called applicant over to him, an argument ensued, and Manis shot at the priest with a pistol two or three times. She added that the former then ran as did she, that they met in a field where petitioner unavailingly endeavored to persuade her to keep the pistol; she asserts that she did, however, agree to maintain silence about the incident, after which they parted. The witness admitted having told different versions of the events on previous occasions but stated that she had done so both because she felt indebted to accused and because he had threatened her life if she implicated him. Another Japanese woman related having seen in the area and at about the critical time a soldier with a Japanese girl wearing a red blouse. Various other witnesses testified to matters of a corroborative nature but accused's conviction was mainly based on the testimony of the two mentioned above. A Japanese woman testified that after she heard screams no one passed her (although under accused's version he would have gone by her to reach the scene of the shooting). A soldier's testimony placed petitioner at the scene of the crime after shots and screams were heard, but he asserted that accused was not excited or out of breath. Evidence offered by the defense: Witnesses testified to the effect that various other people had been suspected of committing the crime; a person (assumed to be Miss Maeno) had not identified accused as the slayer at one time during the pre-trial investigation; a friend of accused had introduced a woman, who may have been Miss Maeno to him on the night in question (prior statement by the witness contradicted this); and Manis had appeared on the scene shortly after the killing. Manis testified in substance: that he did not own a gun; had not shot the chaplain; had never met the girl before and was with her for the first time on the fatal night; while standing with her he heard two screams and a cry for help and ran to investigate whereupon he discovered that Father Ryan had been shot. Several witnesses including his commanding officer and first sergeant testified as to applicant's good character and reputation. Attached to the record of trial is an affidavit attesting to petitioner's good character and reputation which was signed by 112 residents of Sullivan and Hawkins County, Tennessee, the area in which his home is located. Also appended to the record is the personal plea for clemency signed by the defense counsel and a petition for clemency signed by four members of the court. A careful scrutiny of the evidence properly introduced at the trial compels a conclusion that the guilt of applicant as charged was clearly established by the evidence. Further examination reveals that an exhaustive study of the record of trial with regard to legal sufficiency was made by a Board of Review. The Board of Review in its opinion discussed in detail the evidence adduced, exhaustively analyzed the points involved, correctly ruled the record of trial legally sufficient and in so doing stated the applicable law.' Therefore, and inasmuch as petitioner's counsel at the oral argument denied any claim of error as to the "technical aspects" of the case, it is considered that further elaboration of the questions involved would serve no useful purpose. It may be re-emphasized, however, that the testimony of Manis in denial of the offense was before the court and reviewing authority for consideration, that the court which observed all the witnesses disbelieved the accused. Great weight must be given to the conclusion of the court in this respect." 3 Though the court was not required to give credence to the testimony of witnesses who were shown to be prostitutes, it was justified in so doing. They were not disqualified as witnesses nor incompetent as such because of their profession. In this respect it has been well stated that, 66* unchastity does not raise a presumption of untruthfulness, nor disqualify a person from becoming a witness nor discredit him so as to make his testimony unworthy of belief." 1 CM 333001, Manis, 81 BR 257. 2 Larson v. Portland S. S. Co., 66 F. 2d 326, 329, hn 1 (9th Cir. 1933); MGM Corp. v. Fear, 104 F. 2d 892, 897, hn 2 (9th Cir. 1939). 3 Wharton's Criminal Evidence, (12th Ed. 1935) Sec. 1420, p. 2329. 4 Butler v. State, 113 So. 699, 700, hn 2 (Fla. 1927). It may be noted that at the time of the incident applicant, by his own admission, was soliciting intercourse with one of the two prostitutes he now claims should be discredited because of their moral character. It cannot logically be determined that one who attempts to purchase such services evidences a moral standard superior to that possessed by the prospective vendor. Thus it would appear to be inconsistent to claim that a prostitute's credibility is low because of her activities, but that the petitioner's is unimpaired even though he attempts to participate with her in the immoral actions mentioned. There is nothing inherently improbable in the testimony of the witnesses for the prosecution and no substantial basis for doubting their credibility appears, in view of the logical reasons for their prior inconsistent statements. Petitioner's assertion that he was clothed differently from others, in a vaguely described identification parade during pretrial investigation, is not supported by any indication in the allied papers or the record; nor can it be ascertained that any witness pointed him out at that particular time, nor that either Miss Motocheshi or Miss Maeno was there at the indicated inspection of suspects. Each positively identified him at the trial. Neither is his present assertion that he requested to be given a so-called "truth test" at or near trial time, which request was purportedly denied, borne out by the record or allied papers; however, if true, the refusal is understandable and would be substantiated for the same reasons that his request of similar import in the instant proceeding has not been favorably considered, namely, that the courts have almost unanimously refused to admit evidence of such examinations because of insufficient present scientific recognition of their reliability and efficacy. Passage of time, subject's conscience or lack thereof, skill, training and intelligence of the operator, and many other elements are said greatly to delimit the reliability of such interrogations. Therefore, no useful purpose would be served by the administration of such tests to applicant. It is noted in passing that two "truth tests" early in the investigation were administered to Miss Maeno (which was not considered against the applicant at the trial and is not so considered here) and resulted in reiterations of her identification of petitioner as the individual who shot the chaplain. * Frye v. U. S., 293 F. 1013, 1014, hn 1, 2, 54 App. D.C. 46 (App. D.C. 1923); State v. Bohner, 210 Wis. 651, 246 N. W. 314, 317, hn 6 (1933); People v. Forte, 279 N.Y. 204, 205, hn 2, 3, (1938), 18 N.E. 2d, 31, 32, hn 2, 3; People v. Becker, 300 Mich. 562, 2 N.W. 2d, 503, 505, hn 4, 5 (1942); People v. Wochnick, 219 P. 2d 70, 72, 73, hn 1, 2, 3, 4 (Calif. 1950) and others. |