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November 7, 1947

HIATT et al.

The opinion of the court was delivered by: FOLLMER

After hearing had and opinion filed, *fn1" Petitioner alleged that when the response was served upon him it was not accompanied by a copy of the Court-Martial Record which had been attached as an exhibit to the original copy of the response as filed. Petitioner did not call this to the Court's attention and made no reference thereto until after the Court's opinion had been filed and an appeal noted. The Court-Martial Record was in court and offered in evidence by the Respondent and no objections thereto were made by Petitioner. *fn2"

The Circuit Court out of abundant caution, without deciding the appeal, returned the proceedings for a rehearing after Petitioner had been furnished with a copy of such exhibit. A rehearing was accordingly held.

 No new facts have been adduced on this rehearing. A witness was called for the sole purpose of introducing a letter of reply received by him from a Congressman, which of course was excluded as hearsay. Petitioner requested that his testimony at the first hearing be excluded. *fn3"

 Although he had indicated that he would not testify at such rehearing, he did take the stand, only, however, for the purpose of reading into the record as testimony the contents of a prepared affidavit, the admission of which when first offered in the form of an affidavit had been denied. *fn4" In such statement Petitioner repeats his denial that Major Cole, the impartial investigator under Article of War 70, 10 U.S.C.A. ยง 1542, ever consulted with him. This oral categorical denial is in direct conflict with the record, and as stated in our previous opinion, '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, * * * .

 His next allegation, which is new, is that one Lt. Col. Silvers did not inform him of the nature of the charges against him, or of the provisions of the 70th Article of War. This is without merit. The record shows that Lt. Col. Silvers (J.A.G.D.) was the Staff Judge Advocate who made the 'Staff Judge Advocate's Review' of the Trial record *fn5" and who checked and transmitted the Record of Trial to the Judge Advocate General's Office, *fn6" and who as Division Judge Advocate transmitted the original charges, the investigation report and related papers to the Commanding General with a recommendation that a Court-Martial be convened. *fn7"

 He now further alleges on the basis of a remark made by counsel for the prosecution *fn8" that one 1st Lt. Tytus was the 'Impartial Investigator' and as such failed to comply with Article of War 70. The oath to the original charges, prior to referring same for investigation under Article of War 70 was administered by him as 'Adjutant' *fn9" and the appointment of Major Cole as the Impartial Investigator under Article of War 70 was designed by him as Adjutant on behalf of the Commanding General. *fn10"

 Petitioner further confuses the reference to Captain Niec as the person signing the charges. The Record shows that the original charges upon which the appointment of an Impartial Investigator under Article of War 70 was predicated, were signed by Captain Niec. *fn11" It is possible that Lt. Tytus may have assisted Captain Niec in such preliminary informal investigation, but this is not material to the issues involved

 In connection with the allegation of deliberate suppression of evidence and the denial of the right to interrogate a witness, the opinion as previously filed refers to testimony of the Petitioner at the first hearing. His request to disregard such testimony would not change the conclusions there reached. On the contrary, such request plus his failure to testify at the rehearing would leave such allegations totally unsupported by any proof whatsoever; and the conclusions reached in our previous opinion must, a fortiori, stand.

 Accordingly, after rehearing had, our opinion as previously filed is reaffirmed, the petition for writ of habeas corpus is denied, and the rule to show cause dismissed.

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