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Smith v. Hiatt.

decided: September 14, 1948.

SMITH
v.
HIATT.



Author: Mclaughlin

Before GOODRICH, McLAUGHLIN and O'CONNELL, Circuit Judges.

McLAUGHLIN, Circuit Judge.

In 1944, while based in England, appellant, then a private in our Air Corps, was convicted of rape and attempted rape by a general court-martial. His sentence of life imprisonment was later reduced to sixteen years. He appeals from the dismissal of his petition for habeas corpus by the District Court.

Both offenses were alleged to have been committed between 10:30 and 11:45 on the night of July 11, 1944, in the same area, which was about five miles distant from his particular base. Appellant claimed that on that evening he had bicycled by himself to public houses in nearby towns, had drunk some beer, and was back in camp well before midnight. Miriam Cullum, the attempted rape complaining witness, testified that she was returning to her home that night about half past ten, walking along with a Mrs. Kerry and wheeling her bicycle beside her. An American soldier passing by asked to accompany them home. Mrs. Kerry said "No." Miss Cullum said nothing. The soldier went with them. Mrs. Kerry left them at her house. Miss Cullum went off on her bicycle. The soldier went with her or followed her. She says he then forced her off her wheel and attempted to rape her. Some people came along and the soldier rode away on his bicycle. Miss Cullum says she told her parents what had happened.

The second girl, Miss Dale, stated that she was on her way home about 11:05. She, too, was on a bicycle. She said that an American soldier rode up to her on a bicycle and forced her off it. As some other soldiers passed she remounted and rode towards her home with the soldier riding beside her. A little later he pushed her from her wheel and after a struggle had intercourse with her.Miss Dale wore glasses. These were not dislodged in the melee. She, too, told her family of the occurrence. Neither the girls nor their families notified the police. It was Miss Dale's going to a doctor in fear of pregnancy, with the doctor advising the authorities, that brought on an official investigation.*fn1 Since the girls said an American soldier was involved in each instance, our army, through enlisted men of its Criminal Investigation Division, investigated them in conjunction with the local police. Meanwhile, the Provost Marshal, Lieutenant Todd, was interviewing suspects, among whom was appellant. The latter was questioned for two hours by Todd and held for an identification line-up which was consented to by him and his unit commander. At the line-up the girls identified Smith. He contends that the line-up was unfair; that indications were given by the military police of his identity. We cannot, of course, here weigh the evidence as to that, but it is to be noted that the officer in charge was Lieutenant Todd.

Todd returned Smith to his cell after the line-up and then would seem to have interviewed the girls that same evening. Exhibit B for the defense referred to at the trial as "Statement of Sheila Dale to Lieutenant Todd" appears to be the record of such an interview. Todd signed these as true copies. Illustrating Todd's connection with the interviews, on page 4 of Exhibit B at the end of Miss Dale's statement and just under her typed signature, appears the following:

"Original statements in the pocketbook of P.C. 305 Felton, Pages Nos. 112-119, and 141, taken at 10.30 A.M. 12.7.44. at Dr. Beckett's Surgery, Manningtree, and at 7.45 P.M. 18.7.44. at Raydon Aerodrome, respectively.

Certified True Copy

s/ E. W. Shepherd.

Detective Sergeant.

A True Copy

Alan B. Todd,

ALAN B. TODD,

1st Lt. ...


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