before trial, and further allegations that he had been denied the right to interrogate a Major Hunter.
The first two matters have already been discussed. The petitioner does not say the witnesses would have testified in his behalf; in fact, does not know to what facts Major Hunter could or would have testified, nor that any actual request for the interviewing of this witness was made. It is quite evident that petitioner's allegation is predicated not upon any demand for this witness prior to trial but upon an afterthought occurring while searching the record for reasons for a writ of habeas corpus. No demand was made during the Court-Martial trial for the production of Major Hunter as a witness. His name appears only once during the interrogation of Corporal Minx with reference to the weapon.
As a matter of fact, though not material, this would appear to have been an erroneous reference in the testimony by Corporal Minx. The testimony of John L. Cuddy, T/5,27refers to Lt. Logsdon,
neither one of whom mentioned Major Hunter
The petitioner's testimony in the habeas corpus hearing shows his complaint is not that he had been deprived of a material witness but that because the prosecution did not call such witness, the petitioner had been denied the right to cross examine him, and he does not contend, nor show, that the witness would have been favorable to him nor even that such witness was available.
After observing the defendant on the witness stand and considering his testimony in the most favorable light, this Court would be bound to find that the petitioner failed to sustain the burden of proof which rests upon him in connection with his allegations, but even more than this his contentions are inconsistent with, directly in conflict with, and contradictory of the record of the Court-Martial proceedings. And it is fundamental that while the record where silent may in proper instances be supplemented, it may not collaterally be contradicted or impugned.
The petition for writ of habeas corpus is accordingly denied and the rule to show cause dismissed.