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April 13, 1949


The opinion of the court was delivered by: FOLLMER

Petitioner, tried jointly with one 'Fuller', was convicted by a General Court-Martial on a charge of rape. In this habeas corpus proceeding he has by his petition, and first and second amendments to the petition, *fn1" sought to raise nearly every conceivable issue which has been before the courts in this type of case, as well as new ones suggested thereby. Most serious was the somewhat startling allegation that Major Lohse, the law member of the court, stepped down from the bench on the first day of the trial and, in the absence of the Trial Judge Advocate, took his position at the prosecution table and conducted the prosecution, again assuming his position on the bench, as law member of the court, during the second day of the trial. *fn2" Because of the seriousness of this allegation it necessitated a second hearing, and involved locating and calling the Assistant Trial Judge Advocate and four members of the court (including the law member) from distant points to testify. *fn3"

After listening to the credible testimony of this array of reputable and substantial witnesses there can be no doubt that there is not a word of truth in petitioner's testimony. It is my opinion that his statements as to what occurred at the trial constitute deliberate perjury. This is confirmed by the Court-Martial Record insofar as it shows what transpired. *fn4" I find as facts that the law member of the court occupied his proper position on the bench as a member of the court throughout the trial on both the first and second days thereof. At no time did he step down, sit with the prosecution or prosecute the case. The case was prosecuted on the first day of the trial by the duly appointed Assistant Trial Judge Advocate

 During the trial questions were asked from the bench by the members of the court, including the law member. This was proper. *fn5" An examination of the trial record is convincing that the court protected the petitioner's rights throughout. The court, including the law member, cautioned witnesses on improper testimony, *fn6" struck improper answers without waiting for an objection, *fn7" and the court continued to a second day of trial in order to call four additional witnesses who had not been called by either the prosecution or the defense. *fn8"

 The verdict was fully justified by the evidence, but in any event we are not here concerned with the guilt or innocence of the accused. As was pointed out in In Re Yamashita, 327 U.S. 1, 8, 66 S. Ct. 340, 344, 90 L. Ed. 499, 'If the military tribunals have lawful authority to hear, decide and condemn, their action is not subject to judicial review merely because they have made a wrong decision on disputed facts. Correction of their errors of decision is not for the courts but for the military authorities which are alone authorized to review their decisions.'

 Petitioner alleges that counsel were not attorneys. They were commissioned officers and this contention is without merit. *fn10"

 It is alleged in the petition that petitioner and his co-accused made longhand signed statements in defense and mitigation, and that neither of these statements were introduced in evidence at the trial. The petition then advances the unique proposition that this deprived the accused of due process of law, and that 'It was for the court to consider these statements in considering the element of 'reasonable doubt." In the brief however it is alleged that 'Both petitioner and Fuller were induced in making the aforesaid statements by reason of false promises * * * .' *fn11" In the same paragraph appears 'These long-hand statements do not appear in the record and there is nothing in the record to indicate that the general court-martial board had any knowledge whatsoever regarding said statements.'

 There have been frequent attempts to inject into habeas corpus proceedings the allegation that an involuntary statement was admitted into evidence. The present allegations however constitute a paradox. I cut the Gordian knot by finding that the statements were voluntary, that they were not introduced into evidence, *fn12" and that petitioner personally testified at the trial to the same effect as the statements. I conclude as a matter of law that not having been introduced into evidence, it is immaterial whether or not the statements were voluntary and furthermore, that the question of the admissibility of such evidence is for the trial court and not a proper subject of habeas corpus. *fn13"

 The Pre-trial Investigator's report contains the usual statement where nothing has developed to raise doubts as to the sanity of accused, *fn14" and there is attached to his report a psychiatric report by Captain Edwin A. Lawson, M.C., which indicated that there was no basis for questioning the sanity of the accused. Nothing occurred at the trial or during the entire proceedings to create any doubt as to his sanity, nor was any such defense raised. *fn15" He did not contend then, nor does he now contend, that the was not sane. Petitioner's counsel, however, contends that there was a denial of due process because such psychiatric report was not offered in evidence and because petitioner was not afforded an opportunity to cross-examine the psychiatrist. This is, of course, absurd. *fn16" Nor is there anything here which could be considered under the doctrine of suppression of evidence. *fn17"

 Petitioner contends that the proceedings are void because the law member of the court authenticated the partial record for the first day and the entire record when completed 'in lieu of the trial judge advocate because of his absence', and further that this also proves that he was acting as Trial Judge Advocate. *fn18" This proves nothing except that the Trial Judge Advocate was absent the first day and was not available when the record was completed, as is evidenced by both the record and the testimony here. Such authentication was proper. *fn19"

 Incompetency of counsel is also alleged. Petitioner and Fuller indicated at the commencement of the trial that they desired to be represented by the duly appointed defense counsel. *fn20" Petitioner at no time complained to the trial court concerning counsel. *fn21" No proof was offered to the contrary, and I find as a fact that there was no abuse of discretion by the appointing authorities in the selection of defense counsel. *fn22" After an examination of the trial record I further find as a fact that counsel did ably represent him. The burden is upon the petitioner to prove his allegations by a preponderance of the evidence, *fn23" and he has produced nothing except retrospective conjecture. This falls far short of the proof required. *fn24"

 Petitioner contends that jurisdiction was lost because the charges were not forwarded within eight days of his arrest and also served upon him and because he was not given an immediate trial. The offense occurred around midnight or early morning of May 16, 1945. The victim, a partially paralyzed cripple, appeared at headquarters that same morning, with bruises on the neck and arm, and produced letters and a helmet lining found on the premises after the commission of the offense. *fn25" Captain Lindsay, the Commanding Officer, preferred the charges; Captain Avis, Pre-trial Investigator arrived; the accused were identified, and part of the pre-trial investigation was made the same morning. I also find as a fact that the petitioner was at that time fully informed of the nature of the charges against him. The pre-trial investigation was completed by Captain Avis on May 24, 1945, and the report forwarded through three commands between May 24, and May 31, 1945, to the Judge Advocate who made his report on June 2, 1945. The Commanding General referred the case for trial on June 4, 1945. The petitioner was served with the formal charges June 6, 1945. The trial began on June 13, 1945. In the light of the situation at this time in the European Theatre of Operations, the distances at which some witnesses had to be interviewed, the channels through which documents had to pass, and all the other circumstances of the case, the time element is remarkably short and actually commendable. The date for trial was set after defense counsel indicated they were ready to try the case. *fn26" Moreover Article of War 70, 10 U.S.C.A. ยง 1542, as to these provisions contains the words 'if practicable', is not mandatory and not a jurisdictional prerequisite. *fn27" There is certainly nothing before us from which we could conclude that petitioner was prejudiced in his defense by any delay. *fn28"

 A second amendment to the petition was filed shortly before the hearing, which was predicated upon a reply letter from the War Department, received by counsel over five months before the original petition was filed, furnishing names and addresses of possible witnesses. The allegation is 'It is petitioner's belief, based upon the aforesaid official communication that Major Lawson and Captain Lawson are one and the same persons and that it was illegal for said Captain -- Major Lawson, aforesaid to attempt passing upon the mental responsibility of petitioner while at the same time acting as a member of the said general court-martial board, as reported by the Department of the Army in the form and manner as aforesaid.' The letter uses the words 'The latest addresses for the officers who served as members of the courts martial are as follows: * * * .' The construction sought to be placed thereon is 'members of the Court' rather than officers participating in this particular court-martial proceeding, and one name is picked out of the general list for the foregoing allegation. To anyone as familiar as counsel *fn29" for petitioner with the facts in the case, it must have been apparent by even a cursory examination that a list of fourteen names with reference to a trial with a court composed of seven members and with other names in such list being unquestionably those of the Trial Judge Advocate, Assistant Trial Judge Advocate, Defense Counsel, Assistant Defense Counsel, Accuser, Investigating Officer, as well as the Psychiatrist, did not justify such a belief, nor did the Court-Martial Record warrant such a conclusion. It was also apparent that the Psychiatrist, Captain Lawson in 1945, might be called Major Lawson in 1948. With ample time and full knowledge of the whereabouts of the various parties, no statements or depositions of witnesses were obtained to justify such a conjecture, nor was there any basis for it in the Court-Martial Record. The petitioner offered nothing further to bear out his alleged belief. I accordingly find no merit whatsoever in petitioner's contention. This is such a flagrant grasping at straws that it calls for comment. The writ of habeas corpus is a high writ for which this Court has a deep regard, but by the same token, it also follows that it should not be wantonly abused and the time of the Court deliberately wasted.

 It is contended that the introduction in evidence of letters found on the premises constituted prejudicial error for the reason that they were confidential communications between husband and wife. Their sole purpose was to identify the accused. They were clearly admissible. Furthermore, this is a question of the correctness of a court's ruling on the admissibility of evidence, and not the ...

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