79 F. Supp. 433 | M.D. Penn. | 1948
Albert A. Adams, having been convicted by a General Court-Martial under the 92nd Article of’ War, 10 U.S.C.A. § 1564, on a charge of rape, and being now a prisoner at the United States Penitentiary, Lewis-burg, Pennsylvania, has filed a petition for writ of habeas corpus.
Petitioner contends that a court-martial composed wholly of Army officers
Petitioner further contends that defense counsel were not attorneys and did not adequately represent him. At the hearing petitioner was unable to state whether or not they were attorneys, but this is not a requirement under military law.
Petitioner further alleges that there was no thorough and impartial pretrial investigation under Article of War 70, 10 U.S.C.A. § 1542. In this respect he claims he was denied the right to cross-examine witnesses or to present statements or matters on his own behalf, and that the victim was not properly called upon to identify him. This case has been repeatedly reviewed by the military authorities and the sentence reduced from life to twenty, to fifteen, to ten years. In a similar case, Waite v. Overlade, 7 Cir., 164 F.2d 722, it is pointed out that a mere failure to comply with proper procedure with respect to pre-trial investigation does not deprive the trial court of jurisdiction.
Petitioner complains of the admission in evidence of the statement made by him. It was admitted with his consent,
Finally, petitioner contends in effect that on the evidence presented, the military court should have entered a judgment of acquittal. An examination of the record reveals no basis for this contention. While the Court-Martial had the advantage of observing their demeanor and was in a far better position to judge the credibility of the witnesses than this Court on the cold record, there was direct testimony by the victim, whose story in print has a ring of truth and sincerity about it, as well as the testimony of the father and others as to corroborating circumstances, on which the court, believing the same, was justified in rendering the verdict of guilty. The accused deemed it his safest course not to take the stand or testify. There is no' denial of the fact that the victim was, against her will, forced into a room while the accused and another soldier alternately, with a rifle, prevented others from entering the room.
The case was carefully reviewed by the Staff Judge Advocate
The rule to show cause is accordingly dismissed and the application for a writ of habeas corpus denied.
ln accordance with Article of War 4, 10 U.S.C.A. § 1475.
Ex parte Reed, 100 U.S. 13, 21, 25 L.Ed. 538, reaffirmed in Kahn v. Anderson, 255 U.S. 1, 41 S.Ct. 224, 65 L.Ed. 469; and see also Ex parte Quirin, 317 U.S. 1, 68 S.Ct. 1, 87 L.Ed. 3; In re Yamashita, 327 U.S. 1, 66 S.Ct. 340, 90 L.Ed. 499.
French v. Weeks, 259 U.S. 326, 335, 42 S.Ct. 505, 66 L.Ed. 965; Ex parte Smith, D.C.M.D.Pa., 72 F.Supp. 935.
Altmayer v. Sanford, 5 Cir., 148 F.2d 161; Romero v. Squier, 9 Cir., 133 F.2d 528; Ex parte Steele, D.C.M.D.Pa. 79 F.Supp. 428.
One of respondent’s witnesses knew the Major and stated that he was an attorney. H.C. Transcript of Testimony, page 47.
Respondent’s. Exhibit No. 1, Court-Martial Record, page 33 (Top).
Ex parte Smith, D.C.M.D.Pa., 72 F. Supp. 935, 939 (and cases there cited); Setser v. Welch, 4 Cir., 159 E.2d 703; Maye v. Pescor, 8 Cir., 162 E.2d 641; Helms v. Humphrey, D.C.Minn., 63 F. Supp. 4; Pierce v. Hudspeth, 10 Cir., 126 F.2d 337; United States ex rel. Gash v. Nierstheimer, D.C.Ill., 74 F. Supp. 992, 995.
Morton v. Welch, 4 Cir., 162 F.2d 840.
Glenn v. Hodges, D.O.S.D.N.Y., 79 F.Supp. 400 (May 14, 1948); see also as to the effect of errors committed prior to trial, Kaizo v. Henry, 211 U.S. 146, 29 S.Ct. 41, 53 L.Ed. 125; Harlan v. McGourin, 218 U.S. 442, 31 S.Ct. 44, 54 L.Ed. 1101, 21 Ann.Cas. 849.
Respondent’s Exhibit No. 1, Court-Martial Record page 18, et seq.
Smith v. Hiatt, D.C.M.D.Pa., 54 F. Supp. 481; Edminston v. Hunter, 10 Cir.,
II.C. Transcript of Testimony, page 22.
H.C. Transcript of Testimony, page 21.
H.C. Transcript of Testimony, Page 22.
H.C. Testimony of Captain Floyd, pages 44 to 50.
Respondent’s Exhibit No. 1, Court-Martial Record page 50.
Sink v. Cox, 8 Cir., 142 F.2d 917.
Miller v. Hiatt, 3 Cir., 141 F.2d 690; Ex parte Smith, D.C.M.D.Pa., 72 F.Supp. 935, 941; United States ex rel. Cash v. Nierstheimor, D.C.Ill., 74 F. Supp. 992, 995; Cash v. Huff, 4 Cir., 142 F.2d 60.
Respondent’s Exhibit No. 1, Court-Martial Record pages 10 to 12.
Respondent’s Exhibit No. 1, Court-Martial Record pages 3 to 5.
Reaves v. Ainsworth, 219 U.S. 296, 31 S.Ct. 230, 55 L.Ed. 225; French v. Weeks, 259 U.S. 326, 42 S.Ct. 505, 66 L.Ed. 965; Creary v. Weeks, 259 U.S. 336, 42 S.Ct. 509, 66 L.Ed. 973; Waite V. Overlade, 7 Cir., 164 F.2d 722.
In re Yamashita, 827 U.S. 1, 66 S.Ct. 340, 90 L.Ed. 499; Ex parte Reed, 100 U.S. 13, 25 L.Ed. 538; Carter v. Woodring, 67 App.D.C. 393, 92 F.2d 544, certiorari denied 302 U.S. 752, 58 S.Ct. 283, 82 L.Ed. 582; Eagles v. Samuels, 329 U.S. 304, 311, 67 S.Ct. 813, 91 L.Ed. 308.
Ex parte Steele, D.C.M.D.Pa., 79 F.Supp. 428, and eases cited.