the claims he had made to the inspector general on 27 February. Moreover, there was a somewhat suspicious variance between her version of what transpired on the evening of 26 February and that of accused, for, when recalled as a witness for the court, she refuted accused's testimony to the effect that she had loaned him $20.00 to cover their entertainment expenses. Finally, it would be most difficult to believe that accused's possession on 27 February of a Sparton radio with a damaged selector dial and an electric razor with a partially removed price tag, similar articles bearing identical marks of identification having been stolen the day before from a place to which accused had access, was nothing more than a mere coincidence (CM 262039, Cochran, 4 BR (ETO) 321, 322; CM 229977, Proctor, 17 BR 259, 265; CM 274609, Harraway, 47 BR 217, 236). The court was clearly warranted in disbelieving in its entirety the stipulated testimony of accused's brother with respect to the electric razor or, if it did not disbelieve such testimony, in coming to the conclusion that the razor found in accused's possession on 27 February 1947 was not the same one sent to accused by his brother in December 1944." The accused's contention that Second Lieutenant Downing's testimony should have precluded the court from finding him guilty is apparently predicated upon the theory that the prosecution is bound by the testimony of its own witnesses. This is not the rule applicable in criminal cases.

In United States v. Palese, 133 F 2d 600, 603 (CCA 3d 1943) the court said:

"In [a criminal case] the Government does not necessarily give credence to a witness merely by introducing him, for it is the duty of the prosecution in a criminal trial to produce and use all witnesses within reach of process, of whatever character, whose testimony will shed light on the transaction, whether it makes for or against the accused."

Proposed testimony to be adduced upon a new trial

In the event of a new trial the accused proposes to adduce the testimony of Alice McKinster, his wife, Orville McKinster, his brother, who would testify in person that he gave the razor to the accused, and a Captain Gattis who is expected to testify that the accused had used the razor in question many times before it was alleged to have been taken.

Among the requirements for a petition are:

"If newly discovered evidence is relied upon as a basis for a remedy, the petition should show that such evidence, if considered by a court-martial in light of all the other evidence in the record, would result in findings or a sentence substantially different from those as to which complaint is made." (MCM 1949,

par 102. See also Evans v. U. S. (CCA 10) 122 F 2d 461; Prisament v. U. S. (CCA 5), 96 F 2d 865, Johnson v. U. S. (CCA 10) 32 F 2d 127; Wagner v. U. S. (CCA 9) 118 F 2d 801; Johnson v. U. S. (CCA 8) 32 F 2d 127).

"The affidavit of each person whom accused expects to present as a witness in the event of a new trial. Each such affidavit should set forth briefly the relevant facts within the personal knowledge of the affiant." (MCM 1949, par 102).

Considered in the light of the foregoing requirements it is clear that the testimony which the accused proposes to adduce in the event of a new trial is insufficient.

As indicated above, the proposed testimony of Mrs. McKinster would add nothing with respect to the issue of guilt or innocence. The testimony of Orville McKinster, accused's brother, was already before the court in the form of stipulated testimony. Whether oral testimony would carry more weight is a matter of speculation which does not warrant the inference that it "would result in findings substantially different from those

*

as to which complaint is made."

Lastly, the proposed testimony of Captain Gattis is not supported by affidavit or otherwise. The petition does not even supply the proposed witness's christian name or his address. On the basis of an unsupported allegation that an insufficiently described witness would testify in a certain way, I cannot seriously entertain a petition for relief under Article of War 53.

In this connection it is well to consider the basis upon which Federal courts entertain petitions for a new trial on the ground of newly discovered evidence. These tests are enumerated in Evans v. United States, supra.

"There must ordinarily be present and concurring five verities, to wit: (a) The evidence must in fact be newly discovered, i. e. discovered since the trial; (b) facts must be alleged from which the court may infer diligence on the part of the movant; (c) the evidence relied on must not be merely cumulative or impeaching, (d) it must be material to the issues involved; and (e) it must be such, and of such nature, as that, on a new trial, the newly discovered evidence would probably produce an acquittal."

6. Good cause for granting a new trial or alternative relief under Article of War 53 does not appear, and, accordingly, the

petition will be denied.

E. M. BRANNON

Major General, USA

The Judge Advocate General

CSJAGY CM 260159

21 February 1950

MEMORANDUM OPINION

SUBJECT: Application for New Trial or for Other Relief in the Case of Technician Fifth Grade Morris E. Levine, 32276994 (CM 260159)

1. Accused was tried by general court-martial at Fort Myer, Virginia, on 1-2 July 1944. He was found guilty of two offenses of forgery, in violation of Article of War 93, and was sentenced to dishonorable discharge, total forfeitures, and confinement at hard labor for five years. The reviewing authority approved the sentence but reduced the term of confinement to one year. The sentence as thus modified was ordered executed, but execution of that portion thereof adjudging dishonorable discharge was suspended until accused's release from confinement. In accordance with Article of War 50%, the record of trial was examined in my office and found legally sufficient to support the sentence. Pursuant to Article of War 52 the unexecuted portion of the sentence was suspended as of 7 March 1945, and accused was restored to duty. Accused received an honorable discharge on 1 October 1945. He now presents an application for new trial or alternative remedy under Article of War 53.

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2. The record of trial shows that accused was company clerk and mail orderly of Company "C," 5th Battalion, Engineer Replacement Training Center, Fort Belvoir, Virginia, from 12 June 1942 to 7 January 1943. A Jack Livingston was a member of the same organization during a part of this period. In November 1943 the United States Secret Service Division of the Treasury Department received for investigation Government Check No. 51,250, dated 16 November 1942, payable to Jack Livingston in the amount of $24.57 and Government Check No. 45,147, dated 2 November 1942, payable to Jack Livingston in the amount of $64.12. Neither check had been received or cashed by Livingston. Check No. 51,250 had been cashed at the Post Exchange, Fort Belvoir, Virginia, with a forged instrument of the payee, "Jack Livingston," and a second indorsement of "M. E. Levine." Check No. 45,147 had been cashed at the R. E. Knight Store, Alexandria, Virginia, with a forged indorsement of the payee, "Jack Livingston."

Two expert witnesses for the prosecution, Mr. W. A. Shulenberger, Jr., assistant examiner of questioned documents of the Treasury Department, and Mr. Albert W. Somerford, examiner of questioned documents for the Post Office Department, having made independent comparisons of the known handwriting of

Levine and the indorsements on the checks in question, testified that in their respective opinions the accused had written the name of Jack Livingston on both of the checks and the name "M. E. Levine" on Check No. 51,250.

Accused, testifying in his own behalf, denied writing the name "Jack Livingston" on either of the checks in question. He stated that the signature "M. E. Levine" on Check No. 51,250 was similar to his signature, but that he could not recall having signed the check.

Mr. Ira Gullickson, Chief Document Examiner of the Metropolitan Police Department, Washington, D. C., testified that he could not express an opinion as to the writings in question. He felt that his position would not be changed even were additional writings supplied or more time for examination allowed.

3. The court refused to receive in evidence another Government check, dated 7 March 1944, payable to Mary M. Gill in the amount of $56.25, which check bore a second indorsement of "M. E. Levine" and had been cashed on 8 March 1944 while accused was confined in the Fort Myer guardhouse. Information from other sources reveals that a Frank C. Salm confessed to forging the indorsements and later cashing this check. He was tried and convicted for the offense by special court-martial on 9 June 1944. Mr. Shulenberger and Mr. Somerford were positive that the indorsements on this check were not written by the accused.

4. The original charges against accused containing a third specification of forgery under Article of War 93 relative to Government Check No. 415,104, dated 3 December 1942, payable to Mr. Robert T. Coffin in the amount of $37.50. This check, bearing the indorsements "Robert T. Coffin," "N. E. Wells, 1st Lt. CE," and "M. E. Levine" had been cashed at the Fort Belvoir Post Exchange prior to 11 December 1942 although the payee, Coffin, had never received or indorsed the check. By direction of the appointing authority on 27 May 1944 a nolle prosequi was entered to this specification, but no reason was given for this action. However, Mr. Shulenberger in a letter to the Chief, Secret Service Division, Treasury Department, dated 11 January 1944, stated that, in his opinion, the indorsement of "M. E. Levine" on the check was made by the accused, and that the indorsement of Coffin, and Lieutenant Wells and the writing of the accused were similar and of such nature as to provide a basis for material suspicion that Levine might be the author of these indorsements; he did not find a basis for a positive opinion on this point.

5. Although no objection on the point was raised at the trial, the record of trial and allied papers indicate that on 22 January 1944, Captain William H. Fox, the trial judge advocate at accused's

trial, had been appointed assistant defense counsel of the general court-martial to which accused's case was initially referred for trial. Captain Fox continued in such capacity until 18 April 1944, when another general court-martial was appointed on which he was designated trial judge advocate. Captain Fox served in that capacity on a third general court-martial, appointed 29 May 1944, before which accused was tried. Captain Fox actually participated in the prosecution of accused and authenticated the record of trial. A chronological chart of pre-trial progress prepared by Major M. J. Reilly, the trial judge advocate to whom accused's case was first referred on 25 February 1944, indicated that "papers and photostats" were turned over to Captain Fox on 18 March 1944, the latter having just returned from leave, and that Captain Fox "visited accused in the guardhouse and spoke to him." A later entry of 3 April 1944 recites that Major Reilly "spoke to Captain Fox, defense counsel, and that Captain Fox complained of delay."

By letter dated 29 March 1944 Major Reilly requested Captain Fox to submit questions in behalf of the defense relative to depositions to be obtained from "Lieutenants Livingston and Coffin" and alluded to the papers in the case of the accused, which he had turned over to Captain Fox on 18 March 1944.

In a separate letter to Captain Fox, also dated 29 March 1944, accused related the recent developments in his case and referred to the possibility of having his wife testify at the trial with regard to accused's whereabouts from noon 9 December 1942 to 13 December 1942, which testimony would "clear accused" of guilt on Specification 3, and, by inference at least, of the other two specifications. This letter was introduced in evidence at the trial by the defense solely for the purpose of showing a sample of accused's handwriting.

Argument of counsel over admissibility of evidence at the trial includes a statement by Captain Fox that he formerly had acted as accused's counsel.

Records of the Department of the Army reveal that Captain Fox was not a lawyer by profession, but in 1936 had received a Bachelor of Science Degree in engineering from Mississippi State University.

At the trial accused was defended by civilian counsel, Mr. William R. Lichtenberg, whose services accused first sought on 7 May 1944.

6. In an affidavit dated 26 April 1949, submitted with the petition for new trial, accused states that he was not informed until the day of the trial that a nolle prosequi had been entered by the appointing authority with regard to specification 3 of the Charge, relative to Government Check No. 415,104, payable to