that he was, we will now inquire whether the law will raise an inference of coercion from the bare fact of unlawful arrest or restraint where in all other respects a confession taken while in such durance is shown to have been voluntary.
'At common law, it was held that a confession which was shown to have been the free and voluntary act of accused was not to be excluded because of what was considered the incidental circumstance that it was obtained while accused was in unlawful custody ( Sylvester Thornton's Case, 168 Eng.Rep. 955, overruling Ackroyd's and Warburton's Case, 168 Eng.Rep. 954; CM 320230. Hoffman, supra ( United States v. Hoffman, 2 Cir., 137 F.2d 416), should be distinguished on the ground that actual coercion was shown). On the other hand, the Supreme Court of the United States, in the exercise of its general supervisory powers over the procedure to be applied by the civil Federal courts in the administration of justice and without calling into operation the Constitutional guarantees of due process and the right against self-incrimination, has held inadmissible a confession taken while accused was in unlawful custody regardless of the otherwise voluntary nature of the confession ( McNabb v. United States, 318 U.S. 332, 341; see also dissenting opinion, 347 (63 S. Ct. 608, 87 L. Ed. 819); Anderson v. United States, 318 U.S. 350, 355 (63 S. Ct. 599, 87 L. Ed. 829); United States v. Bayer, 331 U.S. 532 (67 S. Ct. 1394, 91 L. Ed. 1654)). The somewhat novel rule of evidence announced in this line of authority is not applicable to courts-martial, however, since the formulation of their correct procedure is vested in the legislative and executive departments of the Government (Const. art. 1, Sec. 8; AW 38; CM 307533, Boston, 1 BR(POA) 287, 296). In Paragraph 114a of the Manual for Courts-Martial, 1928, where the tests to be applied to a particular confession in gauging its voluntary or involuntary nature are laid down in general terms, it is stated: '* * * No hard and fast rules for determining whether or not a confession was voluntary are here prescribed. The matter depends largely on the special circumstances of each case. * * * '(Italics supplied).
'It follows, then, that in military practice a confession is not to be held inadmissible merely because, although otherwise free from taint, it had been taken while accused was in unlawful restraint. In the instant case, without animadversion upon the character of the restraint of which accused complains and after a careful examination of all the circumstances attending the securing of accused's confession, we are of the opinion that such confession was in fact and law voluntary and that it was properly received in evidence.'
Finally, the contention that the trial was not fair and impartial, and that petitioner was prejudiced by remarks of the Trial Judge Advocate in his closing remarks, I have already placed on record my appraisal of this trial as to its fairness, its impartiality, and the unusual ability of its personnel. I have arrived at this conclusion from a most thorough study of the complete record. Petitioner's only specific charge in this regard is the remarks of the Trial Judge Advocate. In the first place, closing arguments of counsel are not ordinarily part of the record and they are not in this Court-Martial record, nor was any evidence in relation thereto adduced at this hearing. Assuming, for the sake of argument, that the remarks ascribed to the Trial Judge Advocate were as indicated in the petition, I find nothing in the record to indicate that the court was adversely affected thereby. It is not the type of remark that in a civil case would disturb this Court. At its worst it is counsel's estimate of evidence brought out at the trial.
The Petition for Writ of Habeas Corpus is accordingly denied and the Rule to Show Cause dismissed.