The applicant was tried by general court-martial at the Branch United States Disciplinary Barracks, Camp Cooke, California, on November 30 and December 2, 1949, and found guilty of wilfully disobeying the lawful command of a superior officer in violation of Article of War 63, assault upon a non-commissioned officer with intent to do him bodily harm with a dangerous instrument, in violation of Article of War 93. He was sentenced to dishonorable discharge, total forfeitures, and confinement at hard labor for eight years. The reviewing authority approved the sentence. After the record of trial had been held legally sufficient by a board of review constituted under the provisions of Article of War 50, the sentence was ordered into execution. Wayne has been dishonorably discharged from the service and is confined in the United States Penitentiary at Alcatraz.

A petition for relief under Article of War 53 is now presented by the accused, who asks that the sentence be vacated and the court-martial proceedings be declared void. The applicant alleges that the order which he was charged with disobeying was not a lawful order, and that the act of assault charged against him was actually an act of self-defense. He has included no affidavits or other exhibits in support of his petition.

The record reveals that on November 1, 1949, the applicant was a general prisoner in the Branch United States Disciplinary Barracks, Camp Cooke, California, serving a five-year sentence adjudged on May 21, 1946, for robbery in violation of Article of War 93, being drunk while on duty as a guard in violation of Article of War 85, and disorderly conduct while posted as a sentinel in violation of Article of War 96. He was given a home parole on February 4, 1948, but was returned to confinement on September 20, 1948 for parole violation.

On the morning of November 1, 1949, the accused was confined in a punitive segregation portion of the disciplinary barracks, and was given a one-hour recreation period at a later hour than he believed was proper. He informed enlisted guard personnel that he was being treated improperly, and that he did not intend to return to his cell until the matter was satisfactorily adjusted. At about 11 a. m., Captain Trudel requested the applicant to return to his cell for a routine inspection of the cell hall, but he refused; the officer then reminded the prisoner that he was a captain and in charge of the cell block, and gave the accused a direct order to return to the cell. The petitioner refused in a surly manner, and wandered around the general area until about 1:30 p. m. At this time a detail of four enlisted men, accompanied by Captain Trudel and two other officers, approached the accused to force compliance

with the order to return to the cell. The applicant, who had a broom stick and two socks weighted with metal soap trays as weapons, resisted; gas was used to subdue him, and in the course of the resulting struggle, according to the evidence, the accused struck Sergeant First Class Meade with one of the weighted socks, lacerating the sergeant's head.

At his trial, the petitioner stated that he desired to be defended by assigned counsel, but that he wished to serve as assistant defense counsel in his own behalf; permission was granted, and he conducted the greater portion of the examination of witnesses and made a lengthy closing argument. The defense presented ten witnesses, but none gave testimony that was substantially at variance with that given by prosecution witnesses. The applicant testified under oath, admitting the specific acts charged, but attempting to show that he was only defending himself at the time of the assault, and was justified in refusal to obey Captain Trudel's order. The accused told the court that Major Raven, supervisor of prisoners, was his "character witness;" this officer testified that the accused "on occasions can be very pleasant, affable; he can win people at will." The major continued, "On other occasions, when he so desires, he can have the most bizarre, hostile, aggressive, and overbearing attitude of any man I have ever known." Later, in answer to a question concerning the petitioner's prison record, Major Raven said that upon the arrival of the witness a year before, "this general prisoner was in solitary confinement and he has been in and out of that status ever since."

In seeking relief under Article of War 53, the petitioner first asserts that the court-martial which convicted him was unlawful and unauthorized, but he does not elaborate upon this allegation. He then declares that his acts, which were charged as offenses, were not wrongful, arguing that he was justified in pursuing the course that he followed. In support of these assertions, the accused has presented no new evidence to substantiate the allegations and argument contained in his petition.

At the outset, it is well to bear in mind the following provisions and principles of law.

Good cause for granting relief under Article of War 53 shall be deemed to exist only if all the facts and information, including the record of trial, the petition and other matter presented by the accused, affirmatively establish that an injustice has resulted from the findings or sentence.' The general rule is that courts are presumed to have acted properly in all respects unless the

1 Paragraph 101 of the Manual for Courts-Martial, U. S. Army, 1949.

contrary is shown.

The burden, to establish prejudicial error, is upon the one who asserts such error and complaint by the petitioner, with nothing more, will not satisfy the requirement of this burden.*

The accused contends that the order he was charged with disobeying was not a lawful order because it was not "authorized by delegated power, as well of ethical substance, moral correctness and permissibility." Later, he describes the action of the officer who gave the order as "diverting my claims in law, and further violating the law by intimidating me by brusque commands." The record affirmatively discloses, and the petitioner does not dispute, that the one who gave the command was a commissioned officer, and that this officer was in charge of the cell block in which the petitioner was located. The only question raised by the petitioner is the validity of the particular order given, which was directed to the accused, and admonished him to return to his cell. A command of a superior officer is presumed to be a lawful command," and the argument presented by the applicant is completely devoid of any substance which would even give rise to an inference that the order in question might have been unlawful. The contention is manifestly without merit.

Concerning the charge of assault with a dangerous weapon, brought under Article of War 93, the petitioner states: "To assault, one must be aggressive, must assert force: none of those ingredients are found in the record. It shows, plainly and forcefully, that I have been subjected to armed attack, and that I had retreated, not advanced to attack."

An assault is an attempt or offer with unlawful force or violence to do a corporal hurt to another; assault with intent to do bodily harm with a dangerous instrument comprises the assault plus the use of a dangerous instrument in a manner likely to produce death or great bodily harm. The petitioner relies upon the record to substantiate his assertion that he was not guilty of assault, but the record leaves no doubt that all of the elements were proved. The novel idea which the applicant attempted to advance at the time of the trial, and now again asserts, is that

2 Miller v. United States, 11 Wall. (78 U. S.) 268, 299, hn 5 (1870). Cf. Bute v. Illinois, 333 U.S. 640, 671, hn 14 (1948); United States v. Fratrick, 140 F. 2d 5, 7, hn 7 (7th Cir. 1944); Atchison, etc., Co. v. Elephant Butts, 110 F. 2d 767, 771, hn 2 (10th Cir. 1940).

3 Adams v. United States ex rel McCann, 317 U. S. 269, 281, (1942).

See Lewis v. Johnston, 112 F. 2d 451, 453, hn 24 (9th Cir. 1940); Franzeen v. Johnston, 111 F. 2d 817, 819-820, hn 4 (9th Cir. 1940); Harpin v. Johnston, 109 F. 2d 434, 435, hn 4 (9th Cir. 1940); Ex parte Beatherase, 98 F. 2d 793 (9th Cir. 1938).

Subparagraph 152b of the Manual for Courts-Martial, U. S. Army, 1949.

• Subparagraph 180k of the Manual for Courts-Martial, U. S. Army, 1949. 7 Subparagraph 1801 of the Manual for Courts-Martial, U. S. Army, 1949.

he was not "aggressive," and that therefore there was no assault. The word "aggressive" is defined as "disposed to attack or encroach," and the petitioner's own words, that he would "fight back," prove the fallacy of his contention. The plain fact is that he struck the sergeant while resisting the imposition of proper prison order; such an act would be a serious offense in non-military jurisprudence" as it is in military law. Excuse for an assault cannot be predicated upon self-defense when the person asserting such a claim has brought about the alleged necessity for resistance by his own fault or wrongful act." Unquestionably the detail which was attempting to subdue the then insubordinate applicant was acting lawfully in its effort to preserve prison discipline, and within the bounds permitted under the circumstances.11 Whether or not the petitioner "retreated to the wall" is immaterial, for he had it within his power to avoid the force used against him by simply submitting to the lawful authority which the guards were attempting to impose upon him. His present argument, attempting to justify his act, may be looked upon as frivolous.

* * *

Good cause for granting of relief under Article of War 53 does not appear; accordingly, the petition will be denied.

SUBJECT: Application by Nathaniel Williams for Relief under Article of War 53 in the Case of Storekeeper Na

thaniel Williams, Merchant Marine, SS. Occidental Victory, Z-324143, et al (CM 323754)

Applicant was tried jointly with Privates Samuel R. Mitchell, Ernest Salice, Fred Wagner and General Prisoner Clarence Jones by a general court-martial at Camp Grohn, Germany, on March 12, 13, and 14, 1947 and found guilty of conspiracy with the other

8 Webster's New International Dictionary, Second Edition.

Cf. 18 U.S.C. 254; Garza v. United States, 159 F. 2d 413, 414, hn 4 (5th Cir. 1947). 10 State v. Clay, 84 Mont. 474, 276 P. 436, hn 1 (1929); 6 CJS 947, A & B Sec. 92 (4) Cf. page 231 of the Manual for Courts-Martial, U.S. Army, 1949, regarding self-defense in homicide when the accused has provoked the altercation.

11 See 41 Am Jur 910, Prisons and Prisoners Sec. 36.

accused, to desert the service of the United States in violation of the 96th Article of War, and of voluntary manslaughter in violation of the 93rd Article of War. He was sentenced to dishonorable discharge, total forfeitures, and confinement at hard labor for life. The reviewing authority disapproved the findings of guilty of conspiracy to desert the service of the United States and approved only so much of the sentence as provided for confinement at hard labor for ten (10) years. After a board of review, constituted under Article of War 5012, held the record of trial legally sufficient, the sentence was ordered executed. Williams now presents an application for relief under Article of War 53.

Petitioner contends that his conviction and sentence are unjust because he assertedly was not a person subject to the Articles of War and therefore the court-martial lacked jurisdiction over him; that the findings of the court that petitioner submitted himself to the jurisdiction of the court by entering a plea to the general issue, and, that the prosecution had established petitioner as a member of the United States Transport Service or a person accompanying or serving with the Army of the United States without the territorial jurisdiction thereof, were erroneous, as were the findings of guilty.

In support of his petition he submits three affidavits which state respectively that: the S. S. Occidental Victory was under bareboat charter to Moore-McCormack Lines, Inc., during the period from September 4, 1946 to February 3, 1947; this vessel, during the stated period, proceeded into Bremerhaven, Germany, for repairs only; and applicant was in the employ of the MooreMcCormack Lines, Inc., during the period, September 4, 1946 to February 3, 1947.

Evidence in the record of trial, shows that on February 10, 1947, all of the accused were confined in the Prison Ward of the 62nd Field Hospital, Lesum, Germany, under the custody of two guards. Wagner, Jones and petitioner planned an escape which involved Salice being taken to the shower room by one guard, thus removing him from the scene, Wagner being pushed by his two cohorts out of the ward door into the other guard seated outside, and each prisoner making his escape in the ensuing confusion. Shortly after 8:00 p. m. on that date the plan was put into effect, and Williams and Jones escaped, but Wagner engaged in a struggle with the guard, who was then and there shot and killed.

A pre-trial written statement of applicant was admitted in evidence over the objection of defense counsel that it was not voluntary. In substance it stated that on February 10, 1947 at about 9:00 p. m. he, Mitchell, Wagner and Jones planned an escape