The opinion of the court was delivered by: FOLLMER
This habeas corpus proceeding was instituted by Darold J. White, a military prisoner at the United States Penitentiary, Lewisburg, Pennsylvania, who was convicted by a General Court Martial on a charge of unpremeditated murder.
Petitioner predicated his allegation of illegal restraint on seven separate issues which may be briefly summarized as follows:
1. Failure of law member to give instructions.
2. The 'line-up' or identification parade in which petitioner was identified was not conducted fairly, amounting to fraud on the court.
3. Petitioner was found guilty on circumstantial evidence which did not exclude any fair and rational hypothesis except that of guilt.
4. The evidence set forth in the record is not sufficient as a matter of law to find the defendant guilty beyond a reasonable doubt.
5. The law member committed prejudicial error in allowing the admission, over the objection of defendant, of testimony concerning petitioner's refusal to submit to a polygraph (lie detector) examination.
6. Error in admitting, over defendant's objection, certain confessions or admissions for the reason they were obtained by threats and promise of leniency.
7. No full and fair review of the trial by the Board of Review.
The Court Martial record is in evidence. The offense in question was committed on or about May 1, 1950, at Karlsfeld, Germany. Following the trial, the General Court Martial adjudged the petitioner guilty and pronounced sentence on June 2, 1950. The record of the trial was reviewed and approved by the Staff Judge Advocate on June 27, 1950, and forwarded for appellate review. On August 17, 1950, a Board of Review in the Office of the Judge Advocate General, Department of the Army, held that the record of trial was legally sufficient to support the findings and sentence. On August 25, 1950, following the completion of the appellate review, the sentence was ordered into execution. On December 15, 1952, by order of the Secretary of the Army, the original sentence of confinement for twenty years was reduced to seventeen and one-half years.
The Court-Martial which tried petitioner was legally constituted and had jurisdiction over petitioner at the time of trial and jurisdiction over the crime with which he was charged, as well as jurisdiction to impose the sentence which he received. Throughout petitioner's trial and the processes of the military appellate review of his conviction, the Articles of War, as amended, 41 Stat. 787, as amended by 62 Stat. 627, formerly 10 U.S.C.A. §§ 1471-1593 and the Manual for Courts-Martial, U.S. Army 1949, promulgated by Executive Order No. 10020, dated December 7, 1948, 13 Fed.Reg. 7519-7629 were in full force and effect.
The Uniform Code of Military Justice which was enacted into law by the Act of May 5, 1950, 64 Stat. 108, 50 U.S.C.A. §§ 551-736, by the terms of Section 5 thereof, 50 U.S.C.A. note preceding section 551, provided that the Act would 'become effective on the last day of the twelfth month after approval of this Act (May 31, 1951), or on July 1, 1950, whichever date is later'. The Code, therefore, became effective on May 31, 1951. Pursuant to the provisions of Article 36 of the Code, 50 U.S.C.A. § 611, the President issued Executive Order No. 10214, dated February 8, 1951, prescribing the Manual for Courts-Martial, United States, 1951, and establishing May 31, 1951, as the effective date thereof, and providing in detail for the transition from procedures obtaining under the Articles of War and the Manual for Courts-Martial, U.S. Army 1949, to those established by the aforesaid Uniform Code and Manual 1951. The Executive Order provided, inter alia, as follows:
'This manual shall be in force and effect in the armed forces of the United States on and after May 31, 1951, with respect to all court-martial processes taken on and after May 31, 1951: Provided, That nothing contained in this manual shall be construed to invalidate any investigation, trial in which arraignment has been had, or other action begun prior to May 31, 1951; and any investigation, trial, or action so begun may be completed in accordance with the provisions of the applicable laws, Executive orders, and regulations pertaining to the various armed forces in the same manner and with the same effect as if this manual had not been prescribed: * * *.' (Emphasis supplied.)
It is therefore apparent that the provisions of the Uniform Code of Military Justice and the trial and review procedures presented by the Manual for Courts-Martial, United States 1951, ...