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January 15, 1946

HIATT, Warden, et al.

The opinion of the court was delivered by: BIGGS

The petitioner, Donald Hicks, formerly a private in the United States Army presently confined in the United States Penitentiary at Lewisburg, Pa., was convicted of rape by a court-martial at Corby, *fn1" England, and was sentenced to a term of twenty-five years. He asserts that he was denied due process of law by the military authorities before and during the course of his trial and seeks release by writ of habeas corpus.

From the evidence given at the court-martial it appears that Hicks met the complaining witness in the court-martial proceedings, Mrs. Murray, and her husband at the White Horse Public House at Corby, England, on Christmas night, 1943. Mrs. Murray testified that this was her first meeting with the petitioner though she stated that she had seen him in the public house nine days earlier. Hicks testified that the meeting on Christmas night was not his first with Mrs. Murray and that he had sexual intercourse with her with her consent twice previously. On December 26 at 10:20 p.m., Mr. Murray being absent at work, Hicks came to the Murray home in Sarrington Close in Corby, knocked at the back door and was admitted. He testified that he came to the Murray home at that hour because he had made an assignation with Mrs. Murray the preceding evening. He brought with him a piece of cake and some tea in a paper bag. Shortly thereafter, according to Mrs. Murray's testimony, Hicks raped her.

 Mrs. Murray's testimony as to how the rape was committed is set out in the record and need not be repeated here. She testified in effect that Hicks consummated his purpose in such a fashion that she was unable to defend herself or effectually to call for help.

 Hicks for his part admitted that he had had sexual intercourse with Mrs. Murray but insisted that it was with her consent and conditioned on an agreement that he would give her a specified sum of money, that upon his refusal to complete his bargain she became 'quite perturbed' and, running to a neighbor's residence in Sarrington Close, alleged that he had committed the crime with which he was charged. *fn2"

 No exact description of this Close is available from the record but it is clear that the house occupied by the Murrays was a 'row' dwelling, partitioned from two adjacent homes by common walls. The home immediately to the south of the Murray's dwelling was occupied by Mr. and Mrs. Smedley. The home to the north was occupied by Mr. and Mrs. Smith. These neighbors testified that frequently through the walls of their dwellings they had heard Mrs. Murray talking to or yelling at her children and the sound of her radio. They testified also that they had heard no unusual sounds or any outcry from Mrs. Murray at the time when she testified she was being ravished.

 Jones, a police constable, testified at the court-martial over objections of Hicks' counsel, that the wall between the Murray and the Smith homes consisted of 4 1/2 inches of brick with 3/4 inches of plaster on each side, a total of 6 inches and that the partition between the Smedley and Murray homes consisted of 9 inches of brick with 3/4 inches of plaster on each side, a total of 10 1/2 inches.

 Across the Close at a distance of about 45 feet was a dwelling occupied by the Green Family. When the events complained of had been consummated Mrs. Murray locked the kitchen door on the outside, taking the key with her, crossed the Close to the Green's home and informed Mr. and Mrs. Green that she had been raped by Hicks. Both Mr. and Mrs. Green then accompanied Mrs. Murray to her home and found Hicks standing between the dining room and scullery. Both Mr. and Mrs. Green testified at the trial as to what Mrs. Murray and Hicks said or did when they met on this occasion and as to Mrs. Murray's appearance and state of mind. This evidence was damaging to Hicks.

 Errors in Procedure Before Trial.

 (1) Hicks was arrested on December 27 and interrogated at the Corby Police Station by Corporal John P. Strayel *fn3" of the military police in the presence of certain persons who need not be named herein. Strayel failed to inform Hicks of 'his right to make or submit a statement in any form subject to the risk of having such statement used against him'. See Instructions, Paragraph 35.a. of the Manual for Courts-Martial, United States Army. Strayel did more than this, however. He induced Hicks to make a statement by informing him that such information as Hicks would give him would be utilized on his, Hicks', behalf. *fn4" Strayel asked Hicks where he had spent the balance of the night of December 26-27. Hicks replied that he had spent it at the Deenthorpe Airfield where he was stationed, at a barracks other than his own. This statement was false and was employed by the prosecution at Hicks' trial with serious consequences for the petitioner as will be pointed out hereinafter

 (2) Article 70 of the Articles of War, 10 U.S.C.A. § 1542, and Paragraph 25.a of the Manual for Courts-Martial both provide that the investigating officer shall examine available witnesses requested by the accused. *fn5" The major issue presented at the trial was whether or not Mrs. Murray had consented to intercourse with Hicks. *fn6" Hicks' offense was being investigated by Captain Davison. Hicks informed Davison that three other enlisted men, Manas, Calderone and Driscoll, had seen him with Mrs. Murray on occasions previous to the night of December 26 'under questionable circumstances' and requested Davison to examine them. Davison interviewed these three men. All stated they had seen Hicks with a woman of Mrs. Murray's general description at about the times Hicks indicated. The 'Summary *fn7" of Report of the Investigating Officer's Findings' states in part that meetings were arranged at Mrs. Murray's home 'where unknown to her' Manas and Calderone were enabled to see her and that both stated that Mrs. Murray was not the woman whom they had described as being with Hicks. The summary goes on to state, however, 'In the light of these developments, and due to the fact that Mrs. Murray had been repeatedly subjected to these meetings, this Officer believed it impractical to have witness Driscoll see her also.' The meaning of the sentence quoted from the report is not clear to the present writer but it is apparent that the investigating officer in failing to let Driscoll view Mrs. Murray, did not examine him in any respect which might have aided Hicks' defense. The provisions of Article 70 and of Paragraph 35.a. of the Courts-Martial Manual required him to do so. For the purposes of the instant case it must be assumed that Driscoll's testimony would have tended to corroborate Hicks' statements as to his prior carnal knowledge of Mrs. Murray and therefore would have affected her credibility. See note 9, infra

 (3) Article 70 and Paragraph 35.a. of the Manual for Courts-Martial provide that during the investigation of a charge ' * * * full opportunity shall be given to the accused to cross-examine witnesses against him if they are available * * * .' These provisions are mandatory. Hicks was not given the opportunity to cross-examine certain witnesses who appeared and testified against him at his trial. Such witnesses whose testimony was damaging to Hicks included Mr. and Mrs. Green, Dr. John Irving, Bernard Murray, the husband of the complaining witness, and Police Constable Jones.

 The investigating officer was apparently unaware that the character, i.e., the reputation, of a rape-complainant as to chastity in the community in which she lives is of substantial probative value in judging the likelihood of her consent and that proof of specific instances of misconduct with any other person than the accused might be inadmissible. *fn9" Despite the fact that evidence as to Mrs. Murray's reputation was at hand the investigating officer paid but little attention to it in his summary. Morever, he stated, ' * * * the charge of rape is correct in the instant case' but went on to say that although Hicks ' * * * may have resorted to force * * * was there in fact want of consent? This Officer, is of the opinion that the answer should be in the negative.

 I am forced to the conclusion that the investigation of the charge was not 'thorough' in that it ...

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