WILLIAM C.

FORESTER and TRACEY BRYANT European

Theater Operations Board of Review Opinions, Volume
6


(11)
BrBllch Office of' The JUige JdTocate General
with the
European Theater of' Operations
.APO 871.
BO.ARD OF REVIE'f
ETO 1.922
UNITED ST.ATES) l'Es'l'EfN BASE SECTION, SERVICES
) Oll' Stll?PLY, IDJROPEAN TEEA.TER OF
Te ) OPERATICNSe
)
PriTate WUJJAM C. FORESTER ) Trial by G..C.M., convened at
(34686405) and PrintenuDEY ) Whittington Barracks, Lichfield,
BRYANT (34686280),. both ot ) Staf'tordshire.. England, 17,18
425th Military Police Escort ) ?ahrch 1944 Sentences Each accused
GuardCOD:i>&DY )
discharge, total tor-
) f'ei tures aDd continell8nt at hard
) labor f'or lif'e. thited States
) Peni tentie.ry, Lewisburg, PeDilsyl-
) Tania.
HOLDJNG by the BOARD OF REVllf
RITER, Val :m-lSCIK>TEN end SARGENT, Judge .Advocates
i. The record d trial in the case of' the soldiers D..S.Imd above has
been examined by the Board ot Review>
2. The accused were tried upcn the tollowing Cl:erge and Specifications
CHARGls Violation ot the 92nd .Article of' We.re
Specifications (J.a at trial be:f'ore arraignm!nt)i
In that PriTate William. c. Farester, 425th Military
Police Escort Guard Company, Rugeley, Staffordshire,
England,PriTate Tracey (NMI) Bryant,. 425th Mili-
tary Police Escort Guard Company. Rugeley, Staf'f'ord-
shire,England, acting jointlyand in pursuance of' a
COlllllOll intent, did, at Rugeley, Staffordshire,
Eagland, on orabout 4 March 1944, with me.lice atore-
thought, 1t'.i lf'ully, daliberately, feloniously, lllllaw-
tully and withpremeditation, kill one Teclmician
FifthGrade Robert Sta:f'f'ord. Conpa.ny D, .390th
Engineer Regiment (General Service), Rugeley. Stafford-
shire, England, a human being, by striking him with
their bands, kicking him with theirf'eet, by strang-
linghim. and abandoning him.
co'N FIDENTIAL
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The accused were originally charged jointlywith Private Drewey
F. J'oyce, Private Dennis N. Branch and Private Ira F. Hall, all of 425th
Military Police Escort Gue.rd Company, Rugeley, Sta.f'fordshire, En.gland with
the murder ofStafford. Upon iootions on behUf of the three soldiers last
above named the court severed their trials, and amnded the Specification
by striking their and unit designations therefrom. The trial then
proceeded as to accused Forester and Bryant upon the Charge and S:pecifica-
tion as e.r.oended.
F.ach accused pleaded not guilty to and was found guilty of the
Charge and e.r.oended Specification. No evidence of previous convictions was
introduced as to accused Forester. Evidence was introduced of one previous
conviction of accused Bryant by special court-martial for absence without
leave tor13 days in violation of the 6lst Article ofwar. Each accused
was sentenced to be disb.alorably discharged the service, to forfeit all
pay and allowances due or to become due, and to be confined at hard labor
for the term of his natural life at such place as the reviewing authority
may direct. The reviewing authority approved each of the sentences,
designated the United States Penitentiary, Lewisburg, Penn.sylvania as
the place of confinement of each accused and forwarded the record of trial
for action pursuant to the provisions of Article ofWar S't
3 The prosecution's evidence summarizes as fallows:
On and prior to 4March 1944 there was located a prisoner of war
camp about one and one-half miles southwesterly from the tolVIl of RUgeley,
Staffordshire, England. Apublic road connecting Rugeley and Hednesford,
a town in Staffordshire, passed in front of the camp and
afforded access to it (Rl.2).
Technician FifthGrade Robert Stafford and Technician Fifth Grade
William H. Wal ton, colored soldiers, both of Company D, 390thEngineer
Regiment, stationed at the prisoner ofwar C8Jlil went on proper pass into
the town of Rugeley on the evening of 4.March 1944 They arrived in the
town about 8 p.m. and visited several public houses and a carnival. They
left Rugeley between 10 p.m. and 10sl5 p.m. on their return to their camp
by way of the aforesaid public road (Rl.3,16). There had been a fall of
snow that evening and while itwas dark there was a certain degree of
luminosity (Rl.6) Stafford end Walton passed two grou.:ps of soldiers
wnich were proceeding on the highway in the saim direction as they travel-
ed (Rl.3,42) After .:passill8 the second group one of itsIl8mbers shouted
to Walton and Stafford Hey, waitn. The two colored men did not halt.
Shortly afterwards another voice from the soldier grou.:p called, Hey, wait.
I am talking to you. Stafford replied,
we haven't got time. We are on our way to camp.
We haven't tiim tostand here in the cold and.
fool with you. You had betterwake up (Rl,3).
Walton.and Stafford res'llII2d their cotr se end again the voice called,
O.K. Whether you wait or not, you black sai-
-
2
coNEIDENTIAL
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(13)
of-a-bitch, we'll get you (Rl3).
The two colored soldiers ignored the response. They were joined by an
English sailor and the three proceeded in the direction of the camp (Rl.4).
A few mo:rmnta later the sailor and Wal ton and Stafford were overtaken by
two of the white soldiers. A conversation ensued. Stafford and Wal ton
then resll!D3d their walk towards ~ The former looked back and se.id,
Letsgo, fellows; itlooks like they're go-
ing to start sormthing; lets go (Rl4).
The colored n:en commenced to run, but were again overtaken by
two white .American soldiers. One of them expressed the desire to fight.
The two colored men retreated. Stafford stated to the two white n:en
that they were making a mistake and declared he did not know what itwas
about. One of them attempted to strike Stafford, but such action met
the ob.)3ct ion of his white companion (Rl4) In the course of the argu-
ment which followed Stafford protested,
Don'thitme, don't hit me. Let me talk to
you (Rl5).
Two sailors arrived at the scene and attempted to stop the fight (Rl5)
Walton freed himselt and ran to the prisoner ofwar ca:np. H3 reported
the incident to his company duty officer, First Lieutenant ?.EDrell T.
Hasty (Rl5.32).
On the night of 4March 19441 Privates Lawrence L. M:>ss, Drewey
F.Joyce, Dennis N. Branch, Footer M. Coats, Ira F. Hall and both accused
all ot 425th ?Jilitary Police Escort Guard Company, then stationed at the
prisoner ofwar camp, were at a public house at or near Rugeley (R20,2l,
42). At about lOrOO p.m. the named soldiers left the public house and
proceeded in the direction of the prisoner of war camp on the public road
above described (R20,21,42). Bryant and Hall, accompanied by some girls
walked in advance tallowed by Forester, Joyce and .Branch (R4.2). Coats
walked by himself (R20) and ?vbsa followed in company with an English girl,
in lmiform (R2l) .About half way to the prisoner of war camp, Bryant
and Hall engaged in an argument with a colored .American soldier. Forester
ran into the three and the cal ered soldier was knocked to the ground
(R42). Joyce intervened in an apparent effort to atop the disturbance
but he was held by eithcrFarester or Bryant (E42). Both Forester and
Bryant beat and kicked the prostrate colored soldier, who protested, Let
m alone and Don
1
t meas with m (R43)
Charles .Albert Martin, Naval .Air Fitter, Harold Arthur Thompaai.,
.Air Mechanic Second Class, Arthur James Pyatt, Air M3chanic, all of the
Royal Naval Air Service and a fourth unnarood member of that Service were
in Rug'3ley attending a dance on the night of 4 March l944 (R23,25.28)
M:i.rtin and the unnamed rating left the dance at about l.OiJO p.m. and pro-
ceeded on foot ai the Rugeley - Hednesford road in the direction ot
Hednesfcrd. Thompson and Pyatt depar.ted from the dance a few minutes
later and followed on the Rugeley - Hednesford road. The latter two, at
l"lflt' ,., ......... ~ 'l
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a point about 400 yards trom the prisoner of war camp gate heard a 'bit
of scuffling' (R23,25.27,28). They waited until Thompson and Pyatt join-
ed them and the four men proceeded together until ho white Amencan
soldiers, whO said that they were under restrictions, asked them to stop
a fight between two black Americans and four white ones (R24,26,28).
Proceeding further the Englishmen discovered a
'blackman lying on the ground on the left hand
side of the road, and two white Americans with
another black one, dragging him aeross the
road, and he was asking them if he might ask a
question; he was saying 'Wait a minute, fellows,
let me ask a question'' (R23).
The ratings intervened and tried to stop the disorder. Awhii;e American
eoldier addressed the Englishmen thusz
'You go on your way. We don't want any trouble
with the English sailors (R23,26,28).
The sailors, being also
1
under restrictions, then left the scene and went
to the prisoner of war camp gate and reported the affair to the Corporal
of the Guard. As the four men left the disturbance Martin, Thompson and
Pyatt saw a wnii;e soldier jump from the grass verge on the side of the
road and 'land with his feeton the back of the prostrate black soldier
(R23,24,26..27,28). At thispoirt inthe affair Thompson and Pyatt heard
one of the white soldiers say, 'Lets kill tbis t---- black bastard
1
(R26,
28).
Evan J"ohn Savage, a British civilian, residing at 76 Cannock Road,
Rugeley, his wife, his brother-in-law, Brymoore Owen and sister-in-law
Annie Owen, the latter two of 2l Moreton Street, Chadsmoor, Staffordsnire,
on tbe evening of 4March 1944 attended a wedding inRugeley. They left
that town about 10 p.m. and walked in the direction of Hednesford on the
aforesaid road. As they proceeded along the road at about ll p.m. they
heard the noise of a disturbance ahead of them (R29,30,31). Upon proceed-
ing further they saw a colored soldier lying on the road with his head to-
wards Rugeley (R29,30). Two white .Americans approached Savage and said
to hima
'Clear off, ifyou dont want no trouble {R29)
SaTage replieda
'Idon't want no trouble, but you can't leave
a man in the road
1
(R29).
One of the soldiers answered:
'Leave him alone. I put him (this damn nigger)
in the middle of the road for the goddam truck
to run over him as he is no good. He has been
. CONFIDENTIAL
(15)
out with a miite girl, and out in the States
we don't have anything to do with them. We
treat them like dogs. The girls are lower
tnan them for to go out with them (Rl9,30).
Savege's response wass
well,you can't do that. Put him on the
bank out of the way of the traffic (R29,30).
The white soldier then pi eked u.p the colored soldier and placed him on the
bank. Mr. and Mrs. Savage a1:..d Mr. and Mrs. Owen then walked to the
prison camp gate am reported the incident to the guard. The two white
soldiers followed them and pasC':::d through the gate wnistling while the
Savages and Owens stood at the camp gate (R29,30).
AfterWalton had informed Lieutenant Hasty of the incident they
went to the place on the highway where the disturbance had occurred and
after soma difficultyfound Stafford on the ground. Lieutenant Hasty could
not feel Stafford's heart beat. Stafford was placed in a truck and was.
taken tu the 312th S;ation Hospital (Rl5,32).
CaptainMorris lQ.einerman, Medical Corps, examined Staffurd when
he reached the hospita.1. at about ll &20 p.m. and pronounced him dead.
There was a laceration at the outer side of his left eye-brow; a contused
swollen area over toe lett cheekbone; and SOIIX' dried blood on the left
side of his nose (R33). CaptainKleiner-man was of' the opinion that
Stafford had died wit!lin an hour prior to the examination (R34).
On b Maren 1944 Captain Samuel Kantor, Medical Corps, performed
an autopsy on Stafford's body. Without objection the autopsy report (Pros.
Ex.l) was received inevidence (R35). Pertinent excerpts from the report
are as follows:
uponremonng the over-coat itis found that
tne neck tie is pulled to the left and is
markedly tightened around the neck exerting
extrene pressure on the tissues beneath * * .
The knot of tne tie is.so firm that ithad to
be cut in order to be removed
* *
This negro American soldier, appearing abvut
30 years of age, was dead wnen he was brough
(sic) to the hospital on 4 March 1944 at 2320
hours. About an hour previous to admission he
was alleged to have been involved in a fight
with a number of'wnite American soldiers near
Rugely about 300 yards from his camp. External
examination of the body disclosed a number of
abrasions, contusions, lacerations, and
ecchym::>ses. His neck was markedly constricted
just above the level of the hyoid bone by his
CONFIDENTIAL
(16)
neck-tie which was pulled tightly. The neck.
especially on the le f't abOTe and below this
constriction, showed marked swelling ot the
tissues. That portion of' the neck-tie aroUD.d
the neck measured 12 inches. The collar of'
the ahirt that he wore was 16 inches. The
circumference of' the neck was l.5i inches.
X-ray examination ot the head, neck, face, and
chest, as well as post-mortem examination dis-
closed no evidence of' fracture of' the skull,
facial bones, cervial vertebrae, Qr thorcic
(sic) cage. There was .no gross evidence of'
damage to the brain or any of' the thcracic or
abdominal viscera. There were a number of'
petechiae noted in the conjunctivae and the
buccal mucous membranes. There was marked oon-
gestion of both lungs. Post-mortem findings
in this case are compatible with death due to
strangulation. (Pros.Ex.l,pp.2,5).
Accused Bryant signed a written statement when interviewed by
Harold J. JOOtzler, J{:;ent, Criminal Investigation Department on 8 March
1944 (R44). The trial judge advocate, with the ccncurrence of' defense
counsel, cautioned the court that the statement should not be considered
as evidence against accused Forester. The statement was admitted in
evidence as Pros.Ex.4 (R.45), with proi;er cautionary instructions from
the law member. The material part of the statement is as f'ollowss:
I was born on the 28th July 1923 I was in-
ducted into the u.s .Army in February 1943 I
have been overseas here in ED.gland since the
latter pert of' January 1944
On Saturday 4 March 1944, I left my camp
without a legal pass. I knew I was going to
be absent without official leave. I left the
camp thru the fence instead of going out thru
the gate. I was accompanied by Pvts. Hall,
Joyce, Moss, Forrester, Branch and Coats, all
members of my canpe.ny. We left camp about
1930 hrs.
We went toward the town of' Rugeley and stopped
at the first pub on the right hand side of the
road. We all bad several drinks of' beer and
ale. I bad about twelve pints of' beer.myself'
.Around cl osinc; ti:roo of the pub, we all
left. I knew it to be near closing time, be-
cause the operator of the Pub came arotmd call-
ing 'time'. When we got out on the street
most of the boys started toward camp, but Hall
and I lingered around a bit waiting f'or some
W.A.AF's to come out of' the 'Pub'. Hall & I
then started up the road toward camp with the
CONFIDENTIJ.L
6
-
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(l?)
ifAAF's When we got near about middle way to
the CalllP, Hall &I and the WAAF
1
s passed a
bunch of .American soldiers. Just as were (sic)
were alongside ot them I knew that Joyce.
Branch and Forrester were :i:art of the bunch of
soldiers and the re.::naining two were colored boys.
Hall asked what was going on and Joyce answered
itwas just a littleargwoont. Hall decided to
go on and said to IIB, 'Lets go, catch the girls.
I followed after him. I believe I walked about
seventy-five yards just behind Hall and then
Hall turned around and met me and said, 'Let's go
back and help our buddies. We never did catch
up to the WAAF's When Hall & I got back to the
other fellows, na.n::ely Forrester, Branch and Joyce
and the two ex>lored boys, they were already fight-
ing, however I only saw that one ex>lored boy was
leftwith Branch, Joyce and Forrester.
I remember seeing Joyce and Forrester punching
the colored boy with their fists. The colored boy
was pleadingwith them to leave him alone. Even
though the colored boy was pleading with them to
leave him alone, I decided to get in on the tight
too. I hit the colored boy about two or three
times in the face with my leftfist. I think
Forrester was hitting him at the same time I was
and then the colored boy either fell down orwas
knocked down. I stumbled down on top of the
colored boy and while I was on top of him I hit
him again about three times in the face with my
left fist. While I was down on top of the color-
ed boy hittinghim, Forrester was kicking him en
the head, face and shoulder. Joyce ran toward
me and hit me in the shoulder, while I was punching
the colored boy down on the ground and told m to
come one (sic) as a truck was coming. I jumped
up off the colored boy and then ran away follow-
ing Joyce, Hall and Branch. Forrester followed
me. We went thrU the fence of the camp and I
went straight to my hut. When I jum,ped off the
colored boy, I don't remember anyone picking him
up. The last I saw of him he was laying on his
back on the ground..
. 4. The prosecution specifically identified the accused, Forester
and Bryant, as the immediate assailants of the deceased by means of the
following e v i d e n e ~
(a) - court room identification by Walton, made during the course
of his testimony, of both accused as two of'the white .American soldiers
who participated in the altercation wherein Stafford was killed (Rl.5).
CONFI
(18)
(b) - Testimony of Captain Richard E. Lobuono, Assistant Provost
10th Replacem3nt Depot, that on the evening of 5 March 1944 Wal ton
identified Joyce, Forester and Bryant as three of the participants in the
fi 1;;,ht on the road on the night of 4 I.ttrch 1944 Wal ton selected the three
men from a group of nine n:en on two separate occasions and from different
arrangements of the nine n:en in the identification parades (Rl8,l9).
(c) - Coats' and llioss' positive testimony that Forester and
Bryantwere in the group of white soldiers who departed from the public
house in Rugeley about 10 p..m. on the night of 4 March 1944, proceeded to-
wards the prisoner of war camp on the Rugeley-1-ednesford road and who en-
countered two colored soldiers on the road and engaged in an argun:ent with
them (R20-22).
(d) - Partial identification by .Annie Owen of .Bryant as one of
the white soldiers seen by her on the occasion on the night of 4 March 1944
when she saw the body of a soldier in the road (RJl).
(e) - The evidence of Corporal Joseph Mi.ko, 440th Military Police
Prisoner of War Processing Company, that acting under crders at about 2JOO
hours, 4 M3.rch 1944 he searched all barracks of the prisoner of war camp
and found Bryant on his back in a stupor evidencillf, intoxication with his
clothes tusseled up and with mud on them. abrasions on one of his hands
and on the top of his hand and stains on his leggings and trousers which
looked like blood (R36,37).
(f) - Testimony of Major Bernard O'Neill, Prisoner of War Enclo-
sure No. 2, that he observed accused Bryant about midnight 4-5 March 1944
and discovered blood on the buttons of Bryant's overcoat, blood on his
lege;ings wnich was then moist and stains which appeared to be blood on his
shoes. There was also a fresh bruise on the second knuckle of his left
hand (RJ9).
{g) - Testimony of Captain Rudolph E. Warnecke, Medical Corps, who
made examination of the hands of both accused on 7 March 1941\.. Forester's
examination showed a quarter inch scratch on the fourth finber, dorswn of
the left hand, over the medial phalanx. Bryant's eXB.J.Unation revealed a
scratch on the base of the ring finger, dorsum. left hand and also scratches
on the distal end of the proximal phalanx and one on the distal end of the
proximal phalanx of the fourth digit, all on the dorsum. The scratches
had been inflicted more than 24 hours prior to the examination (R40).
(h) - Branch's testimony that Bryant and Forester engae;ed in an
argument and altercation with a colored soldier about 10i30 p.m. to 10i45
p.m. on 4 L'arch 1944 on the Rugeley-Hednesford road and that both Bryant
and Forester beat and kicked the negro after he had been knocked to the
ground (R42,43).
(i) - Evidence that Bryant's trousers (Pros.E:x:.2) and leggings
(Pros.Ex.3) were found to be blood stained (RJ8,39,45,46).
- 8 .. CC1NFIDI.N1 \t\L
CONFIDENTIAL
(19)
5 Each accused elected to remain silent.
The only testimony presented by the defense was that ot Private
George Kohnke, 440th Mi.li tary Police Prisoner of War Processing Company,
who stated that at the Prisoner of War camp gate between 10 p.m. and 12
midnight, 4 March 1944 there were several civilians who conversed as to
a scuffle down the road from the gate (R48).
6. (a) - There is competent, substantial evidence in the record ot
trial identifying the accused, Forester and Bryant, as Stafford's princi-
pal assailants. Their presence at the scene of the homicide is establish-
ed without contradiction. Branch's testimony that two accused beat
and kicked the deceased and otherwise mistreated him stands unimpeached.
and undisputed. Such direct and specific eTidence in connection with the
circumstances and events set forth in paragraphs three and four hereof
proved beyond reasonable doubt that the two present accused are primarily
responsible for Staffords dee.th. The findings of the court in this re-
spect are fully supported by the evidence (CM ETO 78, Watts; CM ETO 492.,
Lewis; CM ETO 503, CM ETO 531, McLurkin; CM ETO 885, Van Horn;
CM ETO l36o, Poer CM ETO l l, Leatherberry; CM ETO 1671, Matthews;
CM ETO 1673, Demiy; CM ETO 2358, Pheil).
(b) - Beyond all doubt Stafford's necktie was tightened about his
neck during the assault and battery on him committed by the group of white
soldiers which included the two accused. The knot ot the tie'was so tight
that the post m::>rtem surgeon was compelled to cut itfrom his neck. The
proximate cause of deceased's death was strangulation. The record fails
to reveal whether 1t was Forester, Bryant or one of the other of Stafford's
assailants who tightened the death noose about his throat.
The distinctions between principals, aiders and abetters have
been abolished by Federal statutei
Whoever directly commits any act constituting
an c:f'ense defined in any law of' the Uc.1 ted
States, oraids, abets, counsels, commands,
induces, or procures its commission, is a
principal (35 Stat.ll.52; U..S.Criminal Code,
sec.332, 18 USC.A.seo.5_:p).
In the administration o military justice the distinction betWeen principals,
aiders and abetters and accessories is not recognized (Winthrop's Military
Law and Precedents - Reprint, p.108).
The above statute and the rules ot law cognate thereto are
applicable to this ease. Itwas unnecessary for the prosecution to estab-
lishthat Ferester and Bryant personally fashioned Stafford's tie into a
garrote and applied itas a death producing instrument. In the assault on
Stafford and in the oommission of the homicidal act which evolved therefrom.
the two accused were active and violent participants. They were legally
responsible not only for the individual acts cO!ll!Ilitted by each, but also
tor the acts of each and every participant in theillegal and wholly inex-
CONFIDENTi.'\9. -
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(20)
cusable attack on the unoffending colored soldier. The Board of' Review
has heretofore considered and analyzed the principle of law here involved
in CM :En'O 72, J"acobs and Farleyt; CM ETO 393, and Fikesa CM ETO
804, Ogl.etree et al; CM ETO 895, P',.A.Davis, et al; CM ETO 10,52, Geddies
et ali CM ETO 1284, ,A.Davis et al; CM ETO 1453, Fowler. In Tiew of the
discussions contained in said holdings and the authorities therein cited,
further presentation of authorities and argument are Uilllecessary to sup-
port the conclusion that both Fa- ester and Bryant are responsible as prin
cipe.ls for Stafford's death.
(c) - The deceased and his companion, Walton, were returning to
their cam,p f'rom Rugeley in a law abiding, peaceable manner. Ferester
and Bryant in company with J'oyce, Branch and Hall overtook them on a pub-
lichighway. In spite of the f'act that the two colored soldiers on at
least two occasions sought to evade conflict with them and retreated,
Forester and.Br:yant persisted in their evident purpose ot provoking an
altercation. There isneither evidence nor inferences in the record of'
trial that eitherStafford or Walton was the aggressor; appositely the
evidence is substantial that they were the victims of an unlalrf'ul, inex-
cusable interference by the accused and companions which interference
developed into a cruel battery on the deceased resultant in his death.
No question of self' defense can arise f'ran the evidence. Forester and
Bryant were vicious aggressors tranbeginning to end.
1
Ml.lrder is the unlawf'ul killing of' a human being
with malice aforethought, 'Unlawful_ means
without legal justification or excuse.
* *
M9.lice does not necessarily mean hatred or per-
sonal ill-will toward the person killed, nor an
actual intent to take his lite, or even to take
acyones life. The use of the word 'afore-
thought' does not mean that the malice must
exist tor any particular time before commission
of' the act, or that the intention tokill must
have pre"doualy existed. It is sutf'ic1ent that
itexist at the time the act is committed.
(Clark,)
Malice af'orethousht may exist when the act is
unpremeditated. Itmymean any one ormore of
the :lbllowing states of mind preceding or co-
existingwith the act or omission by which death
is caused.i An intentionto cause the death of',
or grievous bodily harm to, any person, whether
such person is the :IBrson actually killed or
not (except when death is inflicteJ. in the heat
of' a sudden passion, caused by provoca-
tion); knowledge that the act which causes
death will probably cause the death of, or
grievous bodily harm to, any person, whether
such person is the :rarson actually killed or not,
although such knowledge is accompanied by in-
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(21)
difference whether death orgrievous bodily
harm is caused ornot or by a wish that it
may not be caused' (:IDM. 1928, par.148a,pp.
162-164). -
'In every case of apparently deliberate and
unjustifiable killing, the law the
existence of the malice necessary to consti-
tute murder, and devolves upon the accused
the of rebutting the presumption. In
other words, where in the fact and circum-
stances of the killing as committed no de-
fence appears 'he accused mu.st show that the
act was either no crin:e at all or a crime
less than mu.rd.er; otherwise itwill be held to
be murder inlaw (Winthrop's Military Law and
Precedents - Reprint, p.673).
adeliberate intent to kill must exist at the
moment when the act of killing is perpetrated
to render the homicide murder. SUch intent
may be inferred under the rule that everyone
is presumed to intend the natural consequences
of his act (l Wharton's Criminal Law, 12th:Ed.
sec.420,p.633).
llJlllice atorethought is either express or 'im-
plied
1
; e:xpress, where the intent, - as ma.ni-
fested by previous enmity, threats, the absence
of any or of sufficient provocation, &c., - is
to take the life of the particular person kill-
ed, or, since a specific purpose to kill is
not essential to constitute murder,
upon him sone excessive bodily injury which may
naturally result in death (Winthrop's
Military Law and Precedents - Reprint, p.673)
(Underscoring supplied).
Prior to and simultaneous with the assault on deceased, threats to kill him
emanated from the group of white soldiers of which the two accused were
members. Stafford was knocked to the ground and was then kicked and beaten.
While helpless one of the attackers jumped from the verge of the road and
landed with his feet on his prostrate form. .After he had becone uncon-
scious he was either intentionally left in the road or was placed in such
location thereon as to become alroost a certain victim of passing vehicles.
Only the intervention of British civilians prevented the consum:na.tion of
such atrocious deed. The exact monent and the actual perpetrator of the
act of strane,-ulation are not definitely shown by the evidence, but there
is substantial proof that the accused was strangled during the attack upon
him inwhich the two accused were active, vicious participants. The
- 11 -
CONFIDENTIAL
(22)
evidence, without doubt or qualification shows that the accused intended
to inflict upon deceased some excessive bodily injurywhich may naturally
result in death. The IJX)tive of the attack, the purpose of the assault
and the nature of the death producing act, constitute intrinsic proof of
a IIX>St substantial nature that Forester and Bryant acted with malice afore-
thought when they caused Stafford's death. The evidence of the homicide
fully supports the findings of murder (CM ETO 255, Cobb; CM m'O 422, Green;
CM m'O 438, CM ETO 739, Mixwell; CM ETO 969, L. Davis; CM ETO
19()1, Miranda; CM ETO '2007, Harris),
7, The charge sheet stiows that Forester is 26 years, two months ot
age and Bryant is 20 years, seven months ot age, and that each accused was
inducted on 26 January 1943 at Fort McPherson, Georgia, and that their
respective service periods are governed by the Service Extension .Act ot
1941 Neither accused had any prior service.
8. The court was legally constituted and bad ju:dsdiction ot the per-
sons and the offenses. No errors injuriously affecting the substantial
rights of the accused were committed during the trial. The Board ot
Review is of the opinion that the record of trial islegally sufficient to
support tbe findings of gull ty and the sentence.
9. Confinement of the accused in a penitentiary isauthorized by Jl6
42 and sec.275 and sec.330 of the Federal Criminal Code (18 USCA. secs.454
and 567) and the designation of the United States Penitentiary, Lewisburg,
Pennsylvania, as the place of confinement is authorized (Cir.291, WD, 10
Nov 1943, sec.V,
- 12 -
fl('\AIri n A I
. CONFIDENTIAL
(23)
lstInd.
ID, Branch Office TJ.AG., with ETOUSA. 2 0 JUN 1944 TO: Commandins
Officer, Western Base Section, Comnnmications Zone, El'OU3A, APO 515, u.s.
Army.
l. In the case of' Privates WILLI.AM c. FORESTER (34686405) and TR.ACEY
BRYANT (34686200) both_of 425th Military Police Escort Guard Company,
attention isinvited to the foregoing holding by the Board of' Review that
the record of' trial is legally sufficient to support the findings of
guilty and the sentence, which holdins is hereby approved. Under the pro-
visions of' Article of' War .SOi. you now have authority to order execution
of the sentence.
2. When copies of the published order are forwarded to this office
they should be accompanied by the foregoing holding and this indorsement.
The file number of the record in this office isETO 1922. For convenience
of reference please place that number in brackets at the end of the orderi
(ETO 1922).
~ ~ h _
// /E. c. :::r_r--7
:Brigadier General, United States Army,
Assistant Judge Advocate General.
t:fHff lDEiHI
Branch Office of The Judge Advocate General
(25)
with the
European Theater of Operations
APO 871
BOARD OF REVIEVI
6MAY1944
ETO 1926
UNITED STATES
)
29TH INFAN.rRY DIVISION.
)
v.
)
Trial by G.C.M., convened at APO 29,
)
U.S. Army, 23 Februa.ry - 19 March
Private P. HOLLIFIELD
)
1944. Sentence: Dishonorable dis-
(34171736), Company L, 175th
)
charge, total forfeitures and con-
Infantry. finement at hard labor for ten years.

United States Penitentiary, Lewis-
)
burg, Pennsylvania.
HOLDING by the BOARD OF REVIEW'
RITm, VAN BENSCHO'I'EN and SARGrn'l', Judge Advocates
1. The record of trial in the case of the soldier named above has
been exB.mined by the Board of Review.
2. Accused was tried upon the'following charges and specifications:
CHARGE I: Violation of the 6lstArticle of War.
(Nolle Prosequi)
Specification: (Nolle Prosequi)
CHARGE II: Violation of the 69th Article of Vfar.
(Disapproved)
Specification: (Disapproved)
ADDITIONAL CHARGI!S
I: of :,t.he-q6th

Mrs. Agnes Mary Brown, did, at Torquay, England,
on or about 3 January, 19.44, unlawfully pretend
to Mrs. Agnes Mary Brown that he was Johnana
Thomas and was expecting lllOO ($400.00) to be
sent him from America, that he had to visit
Andover to await its arrival and needed money
with which to pay his fare and meet his expenses;
well knowing that said pretenses were false and
by means thereof did fraudently obtain from the
said Mrs. Agnes Mary Brown the sum of 1145 ($180.00).
- 1 -
COi'fflDENTIAL
CALVIN L. SHAMBAUGH European Theater Operations
Board of Review Opinions, Volume 17

{219)
Office ofThe Judge Advocate General
,, with the
European Theater of Operations
APO 887
BOA.RD OF REVIEW NO. l
26 FEB'1945
Ct! ETO 6810,
UNITED STATES
) 3RD INFANTRY DIVISION
)
v.
) Trial by GCM, convened atM.olsheim,
France, 3 December 1944. Sentence:
Private CALVIN L. SHAMBAUGH

To be shot to death with musketry.
(35750636), Company H,
30th Infantry

HOLDING by BOARD OF REVIE11 NO. l
RITER, SHERMAN and STEVENS, Judge Advocates
f
l. The record oftrialinthe case of the soldier named above
. has been examined by the Board of Review, and the Board submits this,
itsholding, to the Assistant Judge Advocate General incharge of
the Branch Office of The Judge Advocate General with the European
Theater of
2. Accused was ti-:1.ed upon the following Charge and Specifica-
tion:
CHARGE: Violationof the 5Sth Article ofWar.
Specification:,In that Private CALVIN L.SHAMBAUGH,
11
H
11
Company , 30th Infantry, did, at or near
" LeFerriere, Italy, on or about 27 January 1944,
desert the se.rviceof the United States by
absenting himself without proper leave from
his organization, with intent to avoid hazard-
ous dut;r, towit: Combat with the enemy, and
did remain absent indesertion until he was
apprehended at or near Anzio, Italy, on or.
about 12 September 1944.
'
6810
-1- .
:(''.';:\'.lr:NT!Al
.., f ... '.
(220)
He pleaded not guilty and, all the members of the court present at
the time the vote was taken concurring, was found guilty of the
Charge and Specification. No evidence of previous convictions was
introduced. All the members of the court present at the time the
vote was taken concurring, he was sentenced to be shot to death
with musketry. The reviewing authority, the Commanding 3rd
InfantryDivision, approved the sentence and forwarded the record of
trial for action under Article ofWar 48. The confirming authority,
the Commanding General, European Theater ofOperations, confirmed
the sentence and withheld the order directing the execution thereof
pursuant to Article ofWar
3. Prosecution's evidence was substantially as follows:
On 27 January1944, accused, a member ofthe second squad
of his platoon, was present.Yd.th his unit, Company H, 30th Infantry,
at the Anzio Beachhead, near Le Ferriera, Italy (RS,9,11). The
company was in reserve, but enemy shells, aimed at nearby American
tanks, were falling in the company area and there was enemy small-
arms fire overhead (R7,8,9,ll).
StaffSergeant Luther B. Estes, squad leader of the third
squad of accused's platoon, testified that the platoon "had orders
to move out on the road in preparation to moving to another sector
* * * to set up our mortars" and "to go into actien" (R7). The .
platoon was instructed. to form at a point on the road about 100
yards from its then position preparatory to itsmovement (Rll). Estes
did not tell accused the co.:npany was preparing to return to the lines,
nor was he awareexcept through hearsay that accused knew this (RS).
Although no announcement of the reason for leaving was made to the
company (R9), "Everyone in' tht company knew it". The last time witness
saw accused in the areawas "just before dark" (R9). After,dark,
about 30 minutes after receiving the movement order, the platoon
moved out to the road. Shells and small-arms fire were stillbeing
received at this time. Following"'El. check of personnel, the squad leader
reported the absence of accused to the platoon sergeant (R9,ll).
The latter thereupon.ordered a search of the immediate vicinit7 as
well as of the area just vacated. The search disclosed accused's
absence (R?,11), and Estes did not see him again until the time of
trial (R?). Estes and another squad leader.of accused's platoon
testified that they did not give accused (not a member.of the squad
of either) pennission to be absent and that if anyone had done so
they would have known about it(RS,11). Evidently no one gave accused
such permission (Rll). After the discovery of his absence, the
:elatoon left the area and thereafter
11
set up in another location"
rn1,9).
I
-2-
6810
i'J
ii

;\
1L
iJ IUL.Ii
(221)
Itwas stipulated by accused, counsel and
prosecution that First Lieutenant Louis A. Tritico, 30th Infantry, if
present in court and sworn as a witness, would testify that<0n or
about 15 November 1944, as investigating officer, he took a statement
from accused. Prior to taking the statement he advised accused of
his rights under Article of War 24 and accused indicated he under-
stood them. Without promises or threats, accused voluntarily made
a statement under oath to the officer and signed the same after the
latter read itto him (Rl2; Pros.Ex.A). The stipulation (Pros.Ex.A),
dated 29 November 1944, bears the signatures of accused, defense
counsel and the trial.judge advocate Defense counsel asked accused
atthe trialifhe would so stipulate and then stated "The accused
agrees" (Rl2). The proaecutiOA-Ulereupon read the stipulation.
The statement was then admitted in evidence, the defense stating there
was no objection, and read b1 the prosecution (RlJ;Pros.Ex.B). It
reads in i:;ertinent pa.rt as followa:
"On or about January 27, 1944 I decided I couldnt
take any' more so I tqok off. I got on an L.S.T
leaving Anzio and went to Naples. In Naples I
ate in the Replacement Depot. Several times I
thought ofturning myself in but I was running
around with fellows, I justnever did. There
were M.P.s inNaples but I did not want to get
sent back up to the lines so I did not turn
myself in. When I heard the outfit had moved out
of Anzio, I went up there. Stayed around there
until I was picked up by the U.Ps on the 12th of
September 1944. I just cant take it, I do not
want to go back up to the outfit.
I cannot read.or write This statment was
read to me by Lt. Tritico before I swore to it
and signed it
11

4. After a full explanation ofhis rights to testify, make
an unsworn statement or remain silent, accused elected to remain
silent (RlJ-14). No evidence was introduced by the defense.
5. Accused is charged with absenting himself without proper
leave from his organization with intent to avoid the hazardous duty
of combat with the enemy. In order to sustain the charge the record
must contain substantial comretent evidence of each of the following
four elements:
(a) that accused absented himselfwithout leave,
as alleged;
(b) that his unit was.under orders or anticipated
6810
orders involving hazardous duty;
--..
(222)
that notice of such'orders and of imninent
hazardous duty was actuallybrought home to
him; and
(d) that atthe time he absented himself he
entertained the specific intent to avoid
hazardoua duty (CM: ETO 5555, Slovik, and
authorities therein cited; CM ETO 5565t
Fendorak; Cll ETO 5958,
{a) Accused's unauthorized absence at the time and
place alleged is establi1hedby the testimony of the two witness-
es, quad 'leaders of' his platoon, and his own confession, which
shows the termination ofthe absence at the time and place and.
inthe manner alleged.
{b) Estes testified that acc:uaed' platoon "had orders
to move out inrreparation to another sect.or where they would
set up mortars and "go into action. The other witnees testified
that the platoon members were told the7 were going to moTe into
another position. This was substantial nidence th&t the unit ns
under order involTing the hazardous dut7 or combat with the eneJD1'
(Cl.! ETO 5555, SlovikJ Cu ETO 5565, Fendorak). .
(c) Immediate:l.1' prior to his absence, accused's Compall7
was located at the J.nsio Beachhead. It. was ina reserve position_
but enem;r fSbells, directed at .f'ri end:q tanks, were .taJ 11ng inthe
area and &n81111' s:mail-a.rm fire waa overhead.. The comp&ll1' was in
such proxim1t7 to the eneiq that itsnryJi"esence inthe areawu
hazardou.s and the situationn.s such t.b&t itmight evolve at an,-.
moment into active combat with the enemy.Itisthua immaterial
that the record lacks evidence accuaed.-wa1,apecitical.17
notified o:t the orders requiring movement ofhie unit to anothe.r
position whereit11'&1 t.o go into action ..The situation here ie
the antithesis of that incu E'l'O 5958, l.!!mand p]en wherein
the Board ot Review held. that the record ot trialwas
insuf'ticient to support findings of' guilt7 ot "'desertion, part}7
on t.he ground that the evidence 11'&1 insufficient to show notitioa-
tioa t.o accuaed'o:t orders and o:t imminent hazardoue dut7.- In that
case, accused's unit was ina rest area.and ina rest period
awaiting the arrival ot other units ot the division.: No member
ot the unit knew when or preciseJ.7where it...U to mon. lien were
permitted to leave the area to Yisit triends inneighboring unit.
There wa.s.no e'rl.denee ot &n7 contact with.the enemy, rresent or
imminent. The inatant case, on the other hand; isinthe,category '
ot the numeroua llb.attle line ouH,which the Boa.rd inthe .f!ra..
and AU.m case apeci!ical.ly distingUiehed__inthe
I -- .
6810.
... ... -.

(223)
"Inthose cases the units of the accused in-
volved were actually engaged in canbat or
in highly important tacticalmissions either
at or shortly after the ofhis
unauthorized absence" (p.9).
Accused's confession, however,indicates that he was aware of
imminent combat duty:
"l couldnt take any more so I took oft. * * *.
There were 11.P.s in Naple.s but I didnot want
to get sent back up to the lines so I did not
turnmyself in. When I heard the outfithad
moved out of Anzio, I went up there. * * *.
I just cant take it, I do not want to go
back up to the outfit".
"'"
Notification to accused was adequately established.(cases cited in
O.! ETO 5958, Allen, CM ETO 4138, ETO 4689, Lorek
and Heiman; CM E'IO 5079, Bowers; Cl(:&'() Killen, CM ETO 6<179,w,
:Marchetti).
(d) Accused was seen by Estes
11
justbefore dark". The
platoon, which was under or close to enem;y fire, moved out to the
road after dark and itwas then discovered that accused was absent.
The unit moved out without him and was installed in another location.
Its.further activities do not appear in the record, but itwas
obviously pressing forward to.wards the enerq. The portion of his
confession quoted above confirms the inferencethat accused so timed
his absence as to be reasonably sure of missing combat dutywith
his unit. His failure to surrender to military police was prompted.
by tear of being sent to the front lines. This is indicated by the
fact that over seven months after the inception ofhis absence, when
he heard his unit had moved and believed there was no further dan-
ger ofmeeting and rejoining it, he returned to Anzio and was appre-
hended. At the trialhe offered no explanation ofhis absence. His
intent, at the time ofleaving his unit, to. avoid the hazardous duty
of combat nththe enen:iy was convincingly established (cases cited
in subpar.(c) supra; ETO 5555, Slovik; eH ETO 5565, Fendorak)
. . .: . ' . 1
6. a. FirstLieutenant R. H. Lewis, as personnel officer, 30th
, Ini'ant17, eertifled. an extract copy of' a morning report oi' aooua1d
1
s
company containing entries showing his absence for the period alleged.
.Lena aiso signed a letter, dated 1!3 November 1944, to his
regimental commander reciting such absence together with other infor-
mation accused
1
s locator.card. Both the extract copy and
the letterar6 :Part of the accompanying papers and neither isa part
of the record ot trial. First Lieutenant Ruel H. JOth Infantry,
the same officer, was appointed and sat as a member or
the court (R3) When the prosecution requested the members to_.state
6810
-5-
-..
.
.
(224)
a:ny facts believed to be a ground of challenge by either side
against any member, be remained silent. The defense did not'
chaJ..;J.enge him (R4). There is no that he was not
competent er eligible to serve on the court-martial. He was
not the accuser, did not investigate the case and was not calJ.ed
as a witness at the trial. Hiit only connection with the case
was the fact that he had iiithe c:.iurse of his duties seen
prima facie evidence of accused's absence without leave. The
acts of signing the extra.ct copy and letter, however, were
purely administrative and, in the absence of indication ofin-
jury to any of accused's substantial rights, any irregularity
involved in Lieutenant Lewis' sitting as a member of the court
may be regarded as harm.less (C:1i ETJ 2471, CM ETO 4967,;
Junior G. Jones). ,l:
.
b. The record does not expressly state that accused assent-
ed to the stipulation as to the testimony of Lieutenant Tritico
(Pros.Ex.A) concerning the talcing of accused's statement (Pros.
Ex.B), which, itwill be assumed by the Board ofReview, amounts
to a confession. Itdoes, however, show that defense counsel
expressly asked accused ifhe would stipulate that ifthe
officer were present and sworn he would testify as shown in the
stipulation and that immediately thereafter defense counsel
stated "The acci.lsed agrees". After its admission inevidence
the stipulationwas read inopen court. Itis signed 'by
accused as well as by the defense counsel and the trial judge
advocate.
"A stipulation need not be accepted by the
court, and should not be accepted where a:ny
doubt exists as to the accused's understand-
ing ofv.hat is involved" (MCM, 1928, par.
126, p.1.36). .
Itis not essential that.the record show accused'a nrbala.esent
to the stipulation (en! ETO .364, Howe), and the ae1ertions ot
defense ccunsel in accused's preS'Em'Ce, coupled with the.facts
that the subject matter of the stipulation and statement were
uncontroverted nnd that accused signed both, warranted tho COllrt
in concluding that there was no doubt "as to the e.cc-qeed.
1
1 undel""
standing ofwhat is involved" in the stipulation (MOM, 1928, .
par.l26l2,, p.1,36, C11 ETO 4564, Woods, Jr.)
.\\.r
Defense counsel specifica.117 stated thero wa.e no
objection to the admission in evidence of so inade
by accused. There isno indication that it otherwiso
6810
..
-6-

(225)
voluntarily made. The corpus delicti of the offense, absence
without leave (C!.! 143744, 145555 (1921), Dig.Op.JAG, 1912-1940,
sec.416(7a), p.267),was established (par.5(a), supra). Under
date of 15 lfovember 1944 the statement was signed by accused
and verified before Lieutenant Tritico (Pros.Ex.B). Itwas
read in open court after its admission in evidence.
11
A stipulation which practically amounts to a
confession vrhere the accused had pleaded not
guilty and such plea stillstands * * *
should not ordinarily be accepted by the court.
In a capital case and in other important cases
a stipulation should be closbl.y scrutinized
before acceptance.
* {< * the court may be rore liberal in accept-
ine stipulations as to testimony" (Ibid., pp.
1.36-137).
The stipulationabove referred to concerned testimony as ts> th,e
taking of accused'sconfession, which was a separate document, sign-
ed and verified by him. Such stipulation is to be distinguished
from one vihich in itself"practicallyamounts to a confession"
.But, al though itwas far from a stipulation ofultimate guilt,
itmerited close scrutiny by the court before acceptance in this
highly serious case. Likewise, the Board of Review upon appel.la.te
review should carefully scrutinize stipulations. Upon doing so
in this case, itfinds no indication of any irregularitywhich
could.injuriously affect any of accused
1
ssubstantial rights. It
affirl'.\IB.tively appears, on the contrary, that those rights were
fully protected.
c. Apsychiatric report, dated 17 November 1944, and signed
by J. Robert Campbell, Major, Medical Corps, Division Psychiatrist,
is pa.rt of the accompanying ;,::ia.pere and reads in part as follows:
,:f..
,"'"2. INFOfil':ATION FURNISHED BY THE SOI.DIER:
* * *
Claims head injuryin 1942 with thirteen weeks
hospitalization. Infected scalp and amnesia
for a week.
,3. MENTAL EXAMINATION:
Soldier examined 17 November 1944 at Company
D 3rd Uedical Battalion.
Literacy may be better than claimed. He is
able to write his name and words such as cat'
(made up of letters used in his name) spelling
6810
-. ('\ .' '... , , ~ ~ i I : , ~
..... :' 7 ~ ' .

(226)
the words without assistance.
Mental Age, by Kent Test, is 10 years. Arith-
metical calculations better than M.A. and ecuca-
tion expectations justify (e.g. l.00 -_.37=. 63).
Geographical, chronological and current knowledge
as well as narrative ability are also better than
formal t'est and education expectations. His
nine months AWOL al.so suggests shrewdness beyond
expectations for a mental defective. Hence,
despite relative illiteracy, I find intelligence
to be within normal limits.
There is no evidence of mental disease or defect
and specifically no evidence organic damage
of brain or intellectual functions of nature
attributable to old civil:tan head injury.
Combat reactions confined to physiological fear
responses.
-4. CONCLUSIONS:
- a. At the present time, is this soldier able
to urderstand the nat.ure of the courts-martial
proceedings and to assist his defense counsel
in the preparation and trial of his case?
* * *
c. At the time of the alleged offence, was
this soldier suffering from a mental defect,
disease or derangement? Hg,"
There is no indication that accused was not sane or responsible for
his acts both at the time of his offense and at the time of trial
(CM ETO 5555, Slovik; CM ETJ 5565, Fendorak; C"...! $TO 5765, Mack,
and authorities therein cited).
d. The record of trial reveals that accused was fully
accorded due process of law as proyided by the Articles of War
and faile to disclose any action or ruling by the court which pre-
judiced his rights (CM ETO 5555, Slovik; CM ETO 5565, Fendora1s).
7. The charge sheet shows that accused is 21 years of age
and was inducted U. March 1943 to serve for the duration of the
war plus six months. He had no prior service.
-8-
/
6810

(227)
8. The court was legally constituted and had jurisdiction
of the person and offense. No errors injuriously affecting the
substantial rights ofaccused were committed during the trial.
The Board.. of Review isof the opinion that the record of trial
islegally sufficient to su;.::port the findings of guilty and
the sentence. -
.
"9. The .penalty for desertion committed in time of war is
death or such other punishment as the court-martial may direct
(AW 5S).
<.U
_ Advocate
,/
7
___ r:/-_, _____ __ (_<_.-_ Judge Advocate
(l/ ..../ .U... }
... _ ......,,,.,./1..-,,.__Judge Advocate ...._Wt_.44_-t.t._.. '-lA--=_
7
.6810
!-.\

-9-
(228)
lstInd.
War Department, Branch Office of Advocate with
the European Theater of Operations. 6FEB 1945 TO: Command-
ing General, European Theater of Operations, APO 887, U.S. Arm;y.
l. Inthe case ofPrivate CALVIN L. SHAMBAUGH (35750636),
Company H, 30th Infantry, attention is invited to the foregoing
holding by the Board ofReview that the record oftrialis
sufficient to support the findings of guilty and the sentence, '
which holding is hereby approved. Under the provisions of Article
ofWar you now have authority to order execution o.t the sen-
tence. : '
2. Of the legal sufficiency ofthe record of trialto
support the sentence of death in this case there can be no
doubt. The accused is 21 years of age. He had no
education and isvirtuallyilliterate. He was inductedin llarch
194.3 and joined the 3rd InfantryDivision on 26 September 1943.
He was hospitalized inline of duty- on 2S October 1943, returned
to his.former organizationonllJanuaeyl944, and the absence for
which he was charged commenced on 'Zl January. His present company
coi:iimander has no knowledge of )lis character or efficiency but he
has had no previous convictions or bad time. Although accused
1
s.
absence endured over 1even month&, the evidence in this case fails
to show a deliberate design to secure incarceration in order to '
avoid the perils and hazards of combat, !as inC'.J ETO 5555, Slotlk
and CM ETO 5565, Fendorak), and points to cowardice on accused's .
part rather than criminality. .
3 .When copies of the published order are fonra.rdedto
this office, they should be accompanied by- the foregoing holding,
this indorsement, and the record of trialwhich is to
, you herewith. The file number of therecord in this office is
' : CM ETO MlO. For convenience ofreference, please place that number
end of the order: (Cl! ETO 6810),
11. ,"'

. E. C. McNEIL
General, United States Army,
Advocate General.

{Sente. nce confirmed but after reconsideration commuted to dishonorable
discharge, total.forfeitures and confinel!lent .for l.U'e. acKO 65 ETO
4 Karch 1945). . . ' '
..
JAMES D. KING European Theater Operations Board of
Review Opinions, Volume 17

(7)
Branch Ot!'ice of The Judge Advocate General
with the
European Theater of.Operations
APO 00'!
BOARD OF REVIEVl NO. 2
24FEB 1945
CM ETO 6376
UNITED STATES
)
95th INFANTRY DIVISION
)
v. ) Trial by GCM, convened at AFO 95,
) U.S. Army, $ January 1945. Sentence:
Private JAMES D. KING )
Dishonorable discharge, total forfeitures
(34547$67), Company C,
)
and confinement athard labor for life.
379th
) Eastern Branch, United States Disciplinary
) Barracks, Greenhaven, New York.
HOIDING -by BO.ARD OF REvm'i NO. 2
VAN BENSCHOTEN, HILL and SLEEPER, Judge Advocates
1. The record of trialin the case of the soldier named a.bove
has been examined by the Boa.rd of Review.
2. Accused was tried upon the following charges and specifica-
tions:
CHARGE I: Violation of the 75th Article ofWar.
Specification: In that Private James D. King, Company
"C", 379th Infantry, did, at or near Saarlautern-
Rodea, Genna.ny, on or about 16 December 1944,
while before the eneicy, by his disobedience endanger
the safety ofhis squad position, which itwuhis
duty to defend, inthat he refused to stand his
tour of guard.
CHARGE II: Violation ofthe 96th Article ofWar.
-1-
6376
... ;.-\l
.....1.:1.\L
(8)
Specification: In that * * * having received a
lawful order from Sergeant Frank A. Volpe,
Company "C", '.3'Z9th Infantry, togo on
guard, the said Sergeant Frank. A. Volpe,
being in the execution of his office, did,
at or near Saarlautern-Roden, Germany, on
or about 16 December 1944, fail to obey the
same.
He pleaded not guilty and, two-thirds of the members of the court
when the vote was taken concurrine, was found guilty ofboth
charges and specifications. Evidence was introduced of four previous
convictions by special court-martial, one for absence without leave
for one day, breaking restriction and making a false statement, in
violation of Articles ofWar 61,69, and 96; two for absence without
leave for one day and two days respectively in violation of Article
of War 61 and one for failure to obey an order of a superior officer,
in violation of Article of War 96. Three-fourths of the members of
the court present when the vote was taken concurring, he was sentenced
to be dishonorably discharged the service, to forfeit allpay and
allowances due or to become due and to be confined at hard labor at
such place as the reviewing authoritymay. direct, for the term of his
natural life. The reviewing authority- approved the sentence, desig-
nated the Eastern Branch, United States Disciplinary Barracks, Green-
haven, New York, as the place of confinement and forwarded the record
of trial for action pursuant to Article of War 5ok
J. The prosecution's evidence shows that the second platoon
of Company C, '.379th Infantry, on 16 December 1944 was fighting in
Saarlautern-P..oden, G rmany (R?). They had just completed an attack
on the enemy, and at about one or two o'clock in the afternoon had
.clearedsome prisoners out of a building, had set up their security
and guard and were awaiting further orders. The platoon was cut
down to 17 men C!-t the time. They had made up a. guard roster and had
arranged security (RS) which was continuous day and night. No man
had to stand a double shift (R9) and had four hours off and two hours
on guard. There was no break in the guard from the time house
was taken (R25). Two heavy machine guns were in the room on the
ground floor (RB,14,19,20,21,25), at the front of the house with
three men in support, one man was in front in the hallway and one
man in the rear door of the building, also the cellar in such
a position that thefirstman could see the second (R2l). This was
all the security they had (R2l-22). The men who were not on guard
were to keep out of sight downstairs in the cellar where they slept
(R8,22). The Germans held the a.cross the street variously
estimated to be 20 or JO feet distant (RS,10) to 50 yards (Rll), and
there was enemy firing on the street continuously allnight (R7,8,19,
22). These were the conditions prevailing at nine o'clock in the
evening of that day (R7).
-2- 6376
1'; .:. :,T:AL
l; l\.J I '\
(9)
Private First Class Charles H. GWathney of the platoon
attempted to wake accused at 15 minutes to nine that night, for
guard duty (Rll,15,18) but Vihen awakened, accused continued to
lay there and although he was called three times over a period
of ten minutes, he did not get up {Rll) but just said,
11
0K, I'll
get up in a minute" (Rl2). Sergeant Frank A. Volpe of the same
platoon had awakened Gwati).ney, whose duty it was to get the others
on the shift up (R22) and he was standing at the head of the stairs,
heard the shouting and went downstairs. Gwathney was trying to
get accused up and Volpe shook him and told him to get up without
Volpe then gave accused a direct order, repeated two or
three times, to go on guard and accused shouted at the top of his
voice "Are you going mma.ke me go on

(Rl2,18,2.3). As the
enemy was just across the street (R2.3) and there were openings
all over the cellar covered only by blankets (R24) and accused was
exceptionally loud (Rl2,l.3,l.4,18,23) they were forced to do some-
thing so Volpe pulled him up from the bed and told him to quiet
down. Accused kept talking and Volpe with closed fist {R24) struck
him once across the face when accused tripped and fell (Rl.3,lo,23).
He continued to talk and yell and Vdpe (R23) who was ver:r angry
(R21+) struck him in the face again (Rl.3,2.3) whereupon accused loudly
stated,
11
By God, I am not going on guard now at all" (Rl.3). The
noise awakened Platoon Sergeant Bundy who asked what was going on.
When told, he said to accused,
11
Just forget what they said, I'm
ordering you to go on guard". Bundy repeated the order twice to
accused viho replied, "By God, I am not going on guard, now, at all"
(RlJ). Bundy then said,
11
0K, forget about it, we'll take care of
him later" (R24,27). 'Accused had been sleeping with his shoes (Rl6)
and his other clothing on (Rl8). Gwathney had gone from the cellar
to his post and accused was to have the BAR as security from the rear.
Gwathney went to the rear to take accused's place, and covered two
posts as accused's failure to go on guard left them short one man,
there beine no other man to take his place (R25). At the time bf the
trial Sergeant Bundy was in the hospital (R.14-15).
4. Accused, as the only defense witness, testified that he was
first on guard duty on 16 December, from five to even o'clock, and
was then to have four hours off, from seven till eleven o'clock.
He pulled off his shoes when he came off duty at seven o'clock and
went to bed in the cellar. The next he remembered Sergeant Volpe
{lulled his covers of! and said, "Get the hell up and go on guard"
(R.30). He raised up to put his shoes on when Volpe repeated the
order twice and was told by accused to "Take tt easy". When he got
his shoes on and stood up, Volpe hit him in the eye with his doubled
fist. He had gotten up voluntarily but fell down when hit and on
getting up again, Volpe again hit him in the face with the flat of
his hand (R31). He denied he ever said he would not go on guard.
-.3-
6376
,, i sf.I.
\.
(10)
Then Sergeant Bundy came over and told Sergeant Volpe, "Never
mind, we'll take care of him when we get to the rear. \1e
1
re
leaving tonight at twelve". Bundy then ret'urned to the phone
and Volpe disappeared (RJ2). Accused was not placed under
arrest at that time but "just sat there. He told me not to
go on guard". He testified that there was only one machine
~ in the front of the house and he had helped set itup
\R33,35,37). He admitted he was yelling loud enough to be
heard in the next room and that he knew the Gennans were near
(R33) but they couldn't hear the war he was talking (R34). He
denied Gwathney woke him up (R34,36) and insisted that the in-
cident occurred about a quarter to eleven (R34-37).
Sergeant Volpe, recalled as a prosecution witness,
testified that when he shook him to get him up, accused had
his shoes on and that itwas more than five minutes after giv-
ing accused the order to get up that he struck him (R38).
5.
11
Any officer or soldier who, before the enemy,
misbehaves himself * * * ~ r by a.n.y misconduct,
.disobedience,or neglect endangers the safety
of any fort, post, camp, guard, or other com-
mand v.hich itis his duty to defend * * *
shall suffer death or such other punishment as
a court-martial may direct" (Article ofWar 75).
11
llisbehavior is not confined to acts of.so,owardice.
Itis a general term and as here used Lin NH
72] itrenders culpable under the article a.n.y
conduct by an officer or soldier not conformable
to the standard of behavior before the enemy
set by the history of our arms. * * *
Urrler this clausamay be charged any act
of treason, cowardice, insubordination or
like conduct committed by an officer or
soldier in the ~ e s e n e of the enemi" (MCM,
1928, par.141.2,, p.156).
'
The essential elements of proof are (a) that accused was serving
in the presence of an enemy; and (b) acts or omissions of the
accused as alleged (MCM, 1928, par.141.2,, p.156).
Thisoffense (a violation of.P:R 75) may consist in
11
such acts by any officer or soldier, as * * *
refusing to do duty or to perform some particu-
lar service when before the enemy. * * * The
offence may be committed in a fort or other
.6376
-4-
(11)
mllitary post as well as i..1 the open field,
- as where an officer or soldier fails or
neglects properly to defend or guard the
post or its approaches, when threatened,
attacked or beseiged by the enemy. * * *
The act or acts, in the doing not doing,
or allowing of which consists the.offence,
must be conscious and voluntary on the part
of the offender
11
(Winthrop's Military Law
and Precedents, 1920, Reprint, p.623).
The evidence shows and accused admits that his platoon
was located just across the street from the enemy by whom they were
under fire. They were before the enemy (CJ..i ETO Harchetti).
There is a.conflict between the story of accused and that of the
other witnesses in part only. Accused denied he ever said he would
not go on guard but the testimony of the other witnesses is that
he did not get up, that he failed to obey the repeated orders
given him and that finally he definitely refused to obey the order.
This was a question of fact which the court alone may decide and
whose decision unless palpably in error, may not be disturbed upon
review ETO 1191, Acosta; CM ETO 1953, Lewis)
. - .
The phrase "which it was his duty to defend" may be
rejected as surplusage as the remaining allegations state
sufficient to constitute an offense under the clause of the
Article which declares that "any*** soldier who, before the
enemy, misbehaves himself* * * by any misconduct, disobedience
or neglect" is guilty of an offense (C'iJ ETO 1249, llarchetti).
That such order as alleged was repeatedly given accused
is shown by the evidence and admitted by accused. He denies that
he refused to obey tqe order but it is clearly shown and admitted
by accused that he did not obey the order to go on guard.
The Board of Review is of the opinion that the court
was warranted in finding accused guilty of violation of the
?5th Article of War at the time and place and in the manner alleged.
6. The charge sheet shows that accused is 20 years and seven
months of age. Without prior he was inducted 10 March
1943. ;
7. The court was legally constituted and had jurisdiction
of the person and offenses. No errors injuriously affecting the
substantial rights of the accused were committed during the
trial. The Board of Review is of the opinion that the record of
trial is legally sufficient to support the findings of guilty and
the sentence.
6376

1, ' 1 ;,i..
(12)
8. The designation of the Eastern Branch, United States
Disciplinary Barracks, Greenhaven, New York, as the place of
confinement is proper (Kfl 42; Cir.210, WD, 14 Sept. 1943,
sec VI, as a.mended).
__,,,..--,. . .
~ t ~
. Y ~ l l dge Advocate
6376
. -6-'
ROBERT L. PEARSON and CUBIA JONES European
Theater Operations Board of Review Opinions, Volume
18

BENJAMIN F. HOPPER European Theater Operations
Board of Review Opinions, Volume 18

Article of War - MUTINY OR SEDITION Digest

MUTH!Y OR-SEDIT-ION
AW 66
' . - .. . . .
424 (Ai7 66! r:utiny or Sedition:
Cross References:
454(9la) 2GU5 'ililkins, i/lilliams (Unlnwful meeting
: .. : : -. .
, . '. '! : ., of militorv personnel 'for insubor-
' ., dincte purp9ses)
454(.35):' 1920Horton (Insubordin.'.!to conduct to_, .
; officor) :
447 1052 Geddies (Joinarr:utiny)
. . . '
Several accuseqwere,charged jointlywith,,a;nd found guilty of, joining
in a their COmtr.o.ndiIJ.g OffiCI" and; the military !'OliCe_.,in
violation of AW 66(Chnrge I), rioting in violation.of. A';; $9 (C}1arge II},
end \';rongfully' possessing and using property in violction of. A7l
96 (Chnrge III). Motions for severance deniod,. HELD: LEGALLY SUFFig_I_ENT.
Each offense W$S of -such nature as may be:committed by two or moxe
persons, Thereforea. ioint chcrge Gl)tirely.proper. _Tlm record of
reveals thct nnd wereexercised both by.the.lav: m0mbe:r and....
trial judge advocate in-thepresentation of the stc.tements.of .o.c-.
cused. The court w.ss strictlv enjoinod that a statement should be consi-
deredonly:-;;:$ evidence agcinstI the accused tho satio (:I.h!}QD v
Q_Dited Stntes, F2 F. 2q. 500;.cert. don.298 S. pr_imary ground
of the.motions'.viz: the;nccessity of. socuring testimony of.certain co.- ..
accused becomes idlo in.Jaco:.of. the' fac.t,that tv:enty-throe of the thirty-
five:ic:cused appoared as witnesses anc1 each testificd nt lc!!gth. and was
subjected ta plenary c:ross-examinai:,ion. Considering tho- re.cord of as
whole.and the pccuU::ir natureof the offe.nses chnrged, the court a.id not
.proceed arbitrarily or. in oenying the several !1"-2llins for
trials (Olmste v.. UnitedStntGs, 19 F. 2d i::42, 53 ALR. ::J.472;
den. 275 U.S, 557, 72 L. Ed. 424). It exercised sound judicial ..
discretion and. its. will nc'-. be disturbed on review
144367 (1921); Dig. Ops. JAG, par, 395 (49), p.234; Anno-
131 A.LR, sec.VI, p.926; United States v. supra).
On behalf of each and all accused a mot:Lon was made tostrike Charge II
and III and their respective specifications, for the they were
gyplications of Charge I and its specifications and therefore multifarious.
The motion wns denied. .. !.!._l2!ltiplicati'on ofcharges. Joining in-
._,mutiny ansLcornmitting a l"iot are separate and distince offenses . :A
in militarJ law is a revolt by two or more soldiers with or without
armed resistance against t!'leauthority of their commanding officers (5C;J.,
sec.168, p.352, footnote 2;Cr: 116735; Cf:I 122535 (1918.); Dig. Ops:. JAG
1912-1940, par.424, p.288), and the offense of joining in a mutiny requires
the performance of.an overt act of insubordination by the person accused
(MCrr:, 1928, par.136,:g, p,151).. committing a riot is the joining in a tum-
ultous disturbanceof the peace by three- or more persons acting with a
common intent either in executing a lawful private enterprise ina violent
and turbulent manner to the of thepeople orin executing unlaw-
ful enterprise in a violent and turbiJlentmanner (54 C.J., sec.. l, p.82c;
1928; par.147,,:pp.161,162). Proof of-the the
offense alleged Charge III and its Specification (violation of 96th
Article of War) would not in and of themselves prove either the charge of
joining in a mutiny or committing a riot. The latter offense obviously
-295-
AW 66 MUTINY OR SEDITION
containselements not embraced in the'charge under general article, and
conviction of the commission of both or either of said offenses would not
be inconsistent with a finding of not guilty.under the 96th Article of-War.
may be found guilty of all the offenses charged being
placed in double jeopardy for the same offense (Cr 230222 (1943), 2 Bull.
JAG 96, March 1943).
Where the conduct of accused constitutes the violation of more than one
article of wa:r, separate''charges may be made without subjecting the plea.d-
ing to tne criticism of riultifariousness or duplicity. rn fact, such
practice isdictatedby corrnnon :.irudence. In.theinstant case the charges
were drafted in accordance with this practice and aretherefore free from
the asserted defects relied upon by defense counsel. In event the
granting or denying of the motion was a matter wholly within the judicial
discretion of the court, and in its denial.9f motion there was no such
arbitrary action as would justify disturbinc; its ruling (?linthrop, 1920
Reprint, p.251).
On behalf of each and accsed motions were separately to strike
each cf the specifications and charge.s onthe ground that the allee;ations
contained therein do not specifically allege the _time, place, and specific
acts as to each accused so as to advise.each accused of the
offense against him. . It is exceedingly doubtful that the _Eat.ions.
to strike the specifications were procedlirally proper inasmuch as such .
motions were foun.ded uport alleged defects in the form of thespec:ifications
rather \'han defects in substance (Winthr0p, 19;;'.0 Reprint, However,
even if the motions performed the functions pf a motion to make"more definite
andcertain, or of a special de:riurrer .(v1eresueh pleadings known in'courts-
rrartial practice) (31 C.J., sec.404, pp.819,820), they wer.e :vithout merit.
With respect to the specifications of Charges I and the motions are
premised on the.assumption that it is necessary to allege as to each ac-
cused his particular conduct 1J1
1
hich cdnstitutes joining in a mutiny (Charge
I) and a riot (Charge II). Such a contention entirely ignores
the true nature of the offenses.
The gravamen of tho offense of joining in a is: (lJ there was
a mutiny at a specific time and place begun cgainst tuted nuthori ty,
ond accused joined in it. Both specifications- of Charge I &ro complete
_in this regard. The po.rts of the two spccifice.tions which set forth the
means and mcth.ocls pursued by the accused in "joining in the.mutiny
11
o.re
but descriptive, and taken alone would not h2ve constituted a mutiny
(CE 125432 (1919), Dig. Op. JAG; 1912-1940, sec.424, pp.288,289). Each
accused was entitled to be informed as to v1her.e, when .and agninst whom
there was amutiny and that he was charged with having joined in it. With
such information he could prepare his defense or identify the offense as
a basis for a plea of former jeopardy.. Allegations describing generally
the conduct of the s.cveral ilCcused renders the chc.rge of joining in.-a
mutiny complete and intelligible, but allP-gations particular.izing the .
actions of ench accused nre not necesse.ry.
-296-
!UTINY OL SEDITION
AW 66
The constituent elements of the of rioting are: (1) an unlawful
asse!!!bly consisting of thr,ee or more persons, intent to as-
sist sg3inst lmvful authority; and (,.2) acts of violence (Mm:;, 1928.; pc:r.
147.; 54 c.J., sec.3, p.83.0; 2 Wharton, Criminal Law, 12th Ed., sec.lf.169).
A specification alleging these three elements statesfacts constituting
the offense Allegations describing the acts of violGnce committed are
essontial averments inasmuch as itis them that terror of the popu-
lace is inferred, but they may be ge::-'eral allegations (2 Wharton, Criminal
Lmr, 12th Ed., sec.1869, p.2199). It is unnecossc.ry to set forth the par-
ticularized acts of each rioter, and if the same are contained therein they
ere descriptive merely.(Q_mrnonwealth of M:issachusetts v. 235
Mnss. 449,126 NE 838, 9 ALR, 549). The Specificati.on of Chcrgc II meets
of these requirements &nd fully informed accused as to the exact
nature of charge against them.
Upon request of. the trial judge advocate,.the law member instructed the
court that each v1ri tten and oral st.s.tement of certain accused, which hnd
been admitted in-evidence:-;as evidence the accused making
the statement and must not be considered as evidence against any other of
the accused. This was proper practice in this case. The statements them-
selves were devoid of incriminotion of other accused and were simple in
form. They could not possibly form an improper matrix of hearsay
Iri instances whore the statements are simple, or names of co-accused either
do not appear or are deleted, the practicE;J followed in this instance fully
protects the rights of accused. ,(CM ETO 895 1944)
Copied from III Bull JAG, pp.143-145 (1944).
Accused officer, a chaplain, had a sergeant assemble a negro company
for him. Ho then addressed that compc.ny, urging its members to disregard,
defy ond rG:fruse to obey the orders of their superior officer to be inspected
f()r weapons before going on poss 2nd to work on Su..'1days, nnd to come o.nd see
him in order to get passes to go to church on Sunday, should such posses be
refused by the commanding officer.'He vms found guilty of three specifica-
tions charging the nbove acts, in violQtion of AW 66. HELD: LEGALLY SUFFI-
It may reasonably be inferred that accused's conduct.w!ls with intent
to stirup or
11
cr.eate" collective insubordination air.ong the troops he was
nddressing. Hecommitted anovert act when he had the sergeant assemble the
company forhim, and when he addressed them in the manner described. All
necessary elements of tho offense, including specific intent, apDcared,
It immaterial that no actual collective 'insubordination resuited. Bon-
trcryto all principles of morality; religion and good order, accused
chaplain deliberatelyurged the colored soldiers to disregard the military.
orders of their superiors. "Cloaked with some app:;rent authority and armed
with rebellious and riotous ideas ho the trust that his country
had imposed in him and ondenvorod to foment clnss violence and
mutiny." (CM ETO 2729 1944) ' .
-297-
AW 66
!TITINY.OR SEDITION
When a number of the enlisted personnel of a compc.ny refused to com-
ply with the order's of t!1eir noncomrnissioneCl officers to fell out and go:
to they v;ere told by c lie"utE::nn.nt 'to report to the recreation holl
There, the commnnding officer invited v::i.rious critic:isr:is
were voiced by the enlisted !"len anda pfafn indfootion thcit they intended
to persist "in their re.fusai to 1.vork tinti::L 6ertE.in dcma'nds hnd been 'met, ..:
the comrnD.nding officer ordered them
11
to "get out of her get on tliOse
trucks and go to work". Although "they eventually complied; they hadc n6 .
overt act to show ari intention to imrriedi&tely .:'(a) Seven priirl.ary
accused and 11 secondary. (a:.ccused, dishon9raole discharges vJet-ii sub-
sequently suspended) accused were jointly .chlirge.d in whole 6r Jnpart
with disobeying the _lawful command Of their. su.perio!' Officer
fall out nnd go to work, in violation 6!;:. (E) T'lm primnry accused;
together with four seccndary accused, were charged jointly with beg_!nning
a r.iutinv Yli th intent to subvert and override lawful military nuthori ty by
cmi'Certed disobedience of the '1av1ful orders of a nonccmrr.issl.oned officer.
who WSS. th3ri irt the eX:ecuticn Of hi$ 'office, . e.hd" of thoir COl'l!:JDnding offh
cer, to fall out and go.to work, in violation of AW 66, (c) One primary
accused, with four sec.oridary accused, v::,pe 'cb.arged jointly ;-;lth
_mutinv with intent to. subvert and override lP..wf.'ul military :authority. by
concerted disobedience. of the lawful orders ot :q noncomm.issionea 6"fficcr,
. then :l,n the execution of his office, ll,nd. their. c'ompeny c,cmmo.nder to .fall :
out o.nd go to work, in violation of AW 66. (d). Four .primo.ry accused and
three seccndary accused wero charged jointly-with ..iining.in a mutiny
which had been begun against thE: lm:ful military o.uthor;i.ty of. tho ...
manding officer of their compahy and, with intent to subvert and override'
lawful military authority, with ccncerted disobedience of tho lawful com-
mand of that corrmanding officer to fall out and go to rmrk, in violation
of 66. The primary accused were found guilty as charged. Six -0f
were given 18-year,sentences, and qi:ie was given' a 15-yeo.r sentence .
dishon9rnble discharges YJere not suspended. 7ihilc the sccondcry :cccuscd
received sentences nfter findinr:s of guilt, dishonorable dischargos
were suspend_ed Hence, only the records of the prim2ry accusec;J ari;:i be-. : :
fore the Board of Rovicv\' for ccnsideration here. LEGALLY SUFFICIENT IN
PABT; LEGALLY. INSUFFICIENT IN PART. . , . . .. . . :.
, -.... . ..
. . (A) TRIAL: All accused were. jointly chHrged 7i th a violation of.
AW 64. Two several grcups were separately. charged, jointly within each
group, with beginning a mutiny, and a third separate group was charged
jointly.within itself with joining in a mutiny cor:monced by others--all
. in violation of 66. The allegntions of each AW 66 specification dir-
ectly. connected the: accused named thorejn with the offense charged j_n the
AW 64 specification. The iqentical lccs of the offenses..and tho same-
de.tes were alleged in of the specifications. The commanding .officer's
ordors.
11
to fall out and go -to v;crk
11
were set forth as a basic prcmi.se of.
each offense. "Thero is therefore exhibited on the fnce of the plm:iding ,
a of action and ccmmon objectives of e8ch and all of tho accused
and this is true !lotr;ithstonding the fc-Gt that. each specificE1tion olleges,
a separate offense" "The reasrmcble c6nclusion * * * is thct the of-
fenses charged * * * nlthough separately were part and parcel of
one transaction and tho fcrm cf tho chorgcs and specifications" did not
create a bc.rrier to a joint tri&l. The motion for vms properly
denied.
-298-
MUTINY Oh SEDITION
AW,66
l24
1121 Dcfonse testinC'ny to tho effect that. the ccr-1-
officer .hrd r.1erely
11
adyise.9," the r.ieri' t
1
go to -;;ork .created at
mcst a ccnflict.in the evidence. Althollgh nll of the accused
fell out and r:ent to .yet t.'1is !!rt thQ._sibodionce conte"1plated and
required by the .orderi. The. trucks for the non h2d to t long past the
ncrmo.l time to entruck fer \'.'tlrk. The order called for immodictc obcdi.c!lco.
The soldiers indicated no intention of obeying the order, and.
r.0-dc no t::ove to comply. (See belovi.)
.fil THE
11
'.1.JTINY"--In GE}!ERAL: Accused and ether soldiers, billeted irf
huts .#3 and #17 refused on the mcrning 9f' 6 r::arch to
11
comply ;Ji th orders
of the nccusod who billeted tpe rccreo.ticn hall had knowledge cf
the inutinous agreement * * * and proceeded to act under it, although. they
had not reached the point of defian.ce of the ordr qf. Sergeant.Jecksnn at
the .of the arrival in tho hall l.:,f" the ccmmanding officer and other
officers. "Knowledge of this recalcitrancy cc"mc to tho attetlticn cf Lt.
Johnsen, r1h0 thereupon gave orders that tho company shonld report to the
recreation hall. Cnpto.in Hinton impliedly approved Lt Johnson's action by
hi.s attendance at tho meeting and, po.rticipntion therein. * * * These un-
disputed facts give rise to the _!nference that the soldiers entered the
.recreation: hall meeting anirr:cted by the same spirit of defiance of author-
- ity that they had lately exhibited to thair noncommissioned officers. ***.
With this. condi ti.on confronting him Captain Hinton invited ccmplaints from
his men. These c9rnplaints considered separately and in solido unconsciously
reveal not only a critical attitude of the men toward their officers but
also that the. men (including accused) intended to persist in.their prior
defiance of authority end refusal to go to .7ork until. their demo.nds were
granted. It was ngainst this background that CaptainHinton gave
'to get out of her and get on these trucks and go to work' . There was no
cvert act by fmy of the soldiers which evidenced their intenti0n to c0m-
ply immediately Vlith this comrrrand. Allowing the the full benefit
of its ccntention that nrompt wasrendert:id impossible by the
of Lts. takesell, PFnninger nnd V!ith.ey, n considered end bal-
anced analysis of the evidence reveals a rrruch deeper and more
meaning inherent in this such interpretation of the evidence
o,ffers. Tho over-all evidence * * * supports tho inference tha.t tho inter-
vention -r.- * * did not :Prevent the soldiers from cor.iplying rith tho o.rder,
but 6pposi tely that thoy intervened lleca"..i.se it wns evident that tho ac-
cuscd and fellow soldiers did not intend '.:.o obey the order ahd th'.lt the
lieutencnts I offorts \"Jere purposed :t9 sei::'UI'e cb.odience * * *. * * * The
ulti1'1nte porfoi-rnance by the men cf' tho' so.me c.C::ts as reQuired by the 0rdor
after hnving been bribed by the prom;l.ses of a 'junior officer cam'l.ot retro-
actively cancel their offense n0r sY..oliorate its encrmity."
"The .evidence * * * fully justified the court in concluding. tlwt
some time between the P."cnigo meeting on 25 February io44 h-::ld c.t the cc.np
in * * * und the evoning of 5 March i::hsn the cn.r.pany l':;:rivod at the * * *
camp, the pnlistod po:rscnnel of tho * * * fo:r. Ping g:dcv.:;.nces v.r!licp
may or nay not possessed substance and r.cri t, cn\<:>red ii1tl"' an under-
stnnding or agreement nmcng .. themselves tc rcfuso t0 porfcrm their usml end
ordinary duties on the morning cf the 6 rch unless er until they secured
. -299-
t.24
AW 66 l"lJTINY OR SEDITION
fr0n their officers the proriisos of an investigatirn of .ccmpony 2ffairs by
the Ihspector of tho c6np2ny billeted in
huts #3 and #17 pursued the SDl'10 genern.l course 0f c0nduct end renctod
identically.. to the orders c-f their. suporicr ncncornrdssioncd C'fficer 'to
fc.11 out o.nd g:c to These }
1
ighly incrinine:ting f.'.lcts r:hon sup?lo-
mented by evidence of unrest dissnti.;fnction in. tho ccr.:pany for, several
;1eeks prior tc the events nt the * * * C::tt:lp, and ,of the conduct of the men
at the recreation hnll meeting, coupled with tho 9ritico.l snd subversive
com!llsnts m&de there by certain of their nunber, is substnntial evldqnce
froT:l \vhich the court t.c infer the- prier arrangenent :: and .
understanding of the soldiers to subvert, override or neutrulize supqriar
autlwrity until their demands were grnnt..;d.
11
(D) BEGIN A f1.JTINY--Davis end SM.ith: It could be inferred tho.t those Men
were parties to the subversive agreement. Hrmever, this factor, together
with the fnct thnt they possessed the nocosscry specific intent to over-
ride authority, did not suffice to completp the ca so .::go.inst tl:om.
11
It
nocess2ry * * *. in addition to prove that each of them <.H'.!ong the first of
accused committed some overt net th&t had. for its purpose the accomplish-
ment of the 11greement. An overt a<?t .vm.s both alleged and proved, viz: the
disobedience of the command of Barnes, their superior noncommissioned offi-
cer. In view of the company procedure disobedience of this order was the
first act of defiance and opposition which woulp tiffirmativelJr put the
mutinous into operation and thereby.begin the J'!llltiny.
11
The sub-
sequent disobedience of the lawful order of the commanding officer was
superfluous to the question of their guilt of their AW 66 offense.
iE) BEQIN A The ncncommissionod officer told Ballc:trd
"to make haste, clean up and fall outn.
11
The men proceeded to perform the
order * * *, but before they could leave the hall and go to the trucks,
Captain Hinton and tho other officers entered the hall.and the so-called
meeting ensued. Performance of the part of the order to .fall out 'and go.
to wcrk was therefore .rendered irn.possible. * * * Hence the proscwutiC'n
1
s
proof .of the first alleged overt act of beginning c:t rmtiny, viz: discbey-
ing the cor.unnnding officer's subseouent crder to gc to '.'1crk, the. mutiny
had previcusly begun.upon the disobedience of the noncomriissionod officer.
"Those in the recreation hall did not begin a r.iutiny; they joined 'in a
EUtinv.
11 11
A mutiny existed, Captain Hinton sought to quell it by his ,
order. When Balle.rd refused to obey the order it wns not an overt act '.'>hi ch
related back to the prier tine z;h0n the mutiny COf'lr.1enced coincident with
the events in huts #3 and #17. Rather hj: overt act (disobedience of the
Hinton order) was connected with the. r.rutiny thon in progress, The evidence
would most probably have sustained a finding of Ballard's guilt of joining
a mutiny, but ho is not charged with that offense, The offense of
beginning of mutiny is a distinct offense from thQt of jcining n ITutiny.
Proof -Of the latter offense-does not sustain nllogntions ch2rging the
former. * * * There is n fntal varfonce botwe:m the proof and the cho.rge
in the instant-_case.
_{F). JOIN IN LVTINY--Gavlos. Jemes
1

11
In CC'nsidering
the guilt of tho four named accused of the offense of joining in a mutiny,
two of tho fundcmental elenents thereof must be taken as established be-
yond all doubt: (1) the existence of the rrutinous agreenent between 11 sub-
stantial number of the enlisted personnel of tho company nnd (2) th8t the
soldiers had acted under the ngreer.ient and produced a ccndition ';''h81'eby
EUT INY OR SEDITION AW 66
424
militc.ry r.uthcrity h8d been tenporarily subverted, usurped end defied.
A nutiny existed v;hen Co.pt'.1in Hintcn cppeo.red befcre his rien.
11
"Tho evi-
dence respect to the ricti0ns and utternnces of (the
cused) * * * at the meeting is highly ccnvincing that each of th2!'l v;&s
fully cogniz1mt cf the rigreement and i:1
0
s keenly crnscious Cf the fact
that temporarily the enlisted personnel h.:d secured central of the com-
mand of the ct-6pany. * * * There was therefore substr.ntinl evidence to
support the finding of the court th0t tho four o.ccused acted full
knor;ledge that a mutiny existed and 'that the authcrity of the officers
of the company h&d been temporo.rily subverted and set nside. The burden
.wns also upon the prosecution to prove beyond a reason0ble doubt thnt
Lthese foU!,/ ***each 'joined ip
1
.the mutiny, and to support such fact
proof vms required that each of said accused committed one or mere overt
ccts evidencing their adherence to and union with the mutineers. The overt
oct wus alleged
11
, to wit: the disobedience of the corrrncnding officer's
C'rder to fall out :md go to work. It v:as fully proved.
(g) PLACE Inasmuch as Ballard hos beon f0und net to
beGn gi1ilty of beginning a mutiny in violciticn of A'.7 66, but is still
guili;,y cf willful disobedience in violatic'n of AV/ 64, his place cf ccnfine-
rrent must be changed from the U.S.'-Pcnitentiery, Lewisburg, Penn. to
E&stern Branch, U.S. Disciplinary Bi::.rracks, Greenhe.ven, N.Y. (CM ETO 3142
Gayles et al 1944)
After obtaining permissicn from his superior to collect and impound.
weapons of his company, a company co:-rmander caused his company to assemble,
and gave its personnel a end positive order to deposit .their fire-
arms and bayonets on n truck as their n,:imes '::ere cBllcd. The ten nccused
herein y;ere members of that company o.nd r;ere present at the tir.oe. Rather
than ccmplying, they protested by dissident mutterings and Thurmurings which
finally ripened int0 active and overt disobedience. The-y then left the
company formation. Ignoring a definite command from the officer to re-
form in military order, they moved to a distant area. Thereafter, 2lthough
approached by the officer and warned by him es to the ccnseouences of their
disobedience; they persisted in their refusal to obey--explo.ining the
presence of snipers o.nd the enemy, although they h.sd encountered neither.
Finally,.theofficer applied force to obtain the weapons. Promiscuous end
unccntrclled discharge of the firearms followed, resulting in the deQth of
a fellow soldier. Accused ten soldiers were found guilty of a violation
of AW 66, in that they had, acting jointly and in pursuance of a
1
common intent, caused a mutiny YJhen they concei tedly end willfully refused
to obey the lawful order of their superior officer to turn in their rifles
--their intent hcving been to usurp, subvert and override for the' time
being, lawful military authority. Their sentences included 40 years con-
each. HELD: LEGALLY SUFFIC:;.-:.NT. i.lLTho_Ev_idence: Although ac-
cused argued that they had been given the alternative of going to the other
end of the fieldin lieu of turning in their weapons, the court's deter-
::igainst them in this regard is binding. '.Vhile this case could
h&ve been properly handled cs a willful disobedience in violatfrn of AW 64,
a vioktion of AW 66 wc.s sufficiently proved. There was collective insub-
. ordination and specific intent by ct...ch accused to override end. displace,
-.301"'.'
AW 66
MUTINY OR SEDITION
! : .. ;! ...
' ', '( ...' . : ' !
in combination with his pby:ers 6f command and the .
author;i.ty. of thefr commanding::officer,'.Al'thpughtherecalcitrancy and .r
specific intent have. arisen spontadeously\1.pori:the giving of the
order by the o:ffi.cer to.. personnel to"aelive:r' their weapons,. there
is subst?.nt;i.al ev;i.dence that a purposes followed" im:.
. ;Consequently,". ieirt thecompany forn:at.i.On; the
of a"conspiratorial _agreement "may:legitimately and reasonably
be inf.erred,. Tnat .such agreement had fo:r: .it.$, purpo.se the retention of
their yveapons, in derogatibn 9f the" of,fi.cer
1
s
1
auth.ority, is" manifest by
acC1_lFJeds
1
conduct a few minutes later,'.T.hey..thereby succeeded intempo- .
r,a.rily setting aside the power and au.thor:i.ty of higher command. nThe
necess.(:!.;ry o"vert act of beginning,a"irnitin;y was "shown by their deliberate,
willful and disobedient departure from .the compa'ny formation carrying
with them their firearms. All of the elements cf the offense of begin-
ning a" rrutiny therefore existed -- :.(a) a conspiratorial agreement, (b) .
specific intent.to displace .and override superior authority, and Cc) the
-overt. act of beginning a mutiny.
11
.Neither the neqessity for nor
_2f the order of the company commander. is a .matter .of concern herein.
(?T)he Charge: Although itwas alleged .t!_lat accused had
itwas proved that they had begun a rrutinx. Notwithstanding the discussion
in Winthrop's Military Law and Precedents - Reprint, pp.578-583, which
distinguishes between the two terms-
11
(but is qualified by the statement
1
the terms are not necessarily so closely construed'), itwould seem that
the verb within its meaning the very 'begin'
11
The Board
,of Review in its appellate function may construe and interpret specifica-
tions. The. instant specification is construed as having.charged
with beginning amutiny..(2.Ltaternents bv the When the several
statements'of each of the ten accused were introduced in evidence, the
'courtwas instructed that
11
any statement in any of the Tritten state- .
ments* * * \":hi ch refers to anyof.the.accused other th&n the man.making
that particular staterr.ent is'inadmissible and irrelevant and will.not be .
considered by theCourt. statement made by each accused is ad-
missible only against the particularperson who the statement,!' That
cautionary instruction was adequate to protect the' rights of each accused.
Since the statements were only admissions interest, they were ad-
missible without proof of their.voluntary nature and without the establish- .
ment ?f c;orpus delicti by independent evidence. li.Lentence and Con-
finement: "The punishment forviolation of AW 66 is 'death.or such. other
punishment as a court-martial may dir.ect
1
The '.l'nble of Punish-
ments prescl'ibes no maximum limit 9f confinement
11
The 40..year sentences
herein are legal. "Conflnement in a penitentiary":isauthorized upon con-
viction of the crime of mutiny in any of its a spec.ts by AW 42 and Act.28
Jun 1940, c.439, Title I, sec.5; 54 Stat . 671; .18 USCA sec,13."
(CM ETO 3203 Gaddis et al 1944)., .
:. I'.
i
. r.
.,, I
-.302-
424
MUTINY OR SEDITION
AW 66
Accused was found guilty of

a in violDtion of AW
66. HELD: LEGALLY SUFFICIENT. "Accused appeared at one of the barrncks
of * * * on tho night of 12 July 1944 and delivered an inflammatory language,
.,:;horein he sought to stimulate the men to resist the regularly established
military author:v by not respondingto the reveille call the next morn-
ing. That such caused the confederated and joint
disobedience by t. Joldiers on the next morning is an irrefragable infer-
ence from the evidence; no other conclusion is possible. The
soldiers on the following day not only refused to stand reveille forma-
tion but also persisted in their defiant conduct by disobeyin furt.!'.ler
orders of their superior officers. Throughout the they deliberately
pursued a course of recalcitrancyand revolt that was not only intended to
usurp, subvert, set aside, and overri..de military e.uthority for the tin:e
being, but in fact, did succeed temporarily in its purpose. The conduct of
the soldiers constjtute a mutiny.
11
"Accused's culpability is found in the
fact that he excited the men to this insubordination and temporary over-
throw of the superior military authority of the company officers. Acting
singly and alone, he could and did commit this offense and the proof of his
personal participation in the mutiny which followed was not necessary to
convict him of the offense of 'exciting' a mutiny. It is highly signifi-
cant that he wore T/4 stripes, wrongfully and without authority, when he
made his demagogic appeal to tho ignorance, passions and rrejudices of his
fellow soldiers." (er'. ETO 3928 Davis 1944)
-303-
AW 66
MUTINY OR SEDITION
4 2 ~
: 3 Q 4 ~
Article of War 24 - COMPULSORY SELF-INCRIMINATION
PROHIBITED Digest

COMPULSORY SELF- INCRIMINLTION PROHIBITED
381 (l;.1; 24) Comnulsory Self-Incrimination Prohibited:
Cross Refore nee s:
450(4) 2002 Bellot (Disrobing of accused)
.395(36a) 1284 Davis et al (Seating arrant:" 1ent in
court; identifi-::ation)
4?2(5) 1057 Redmond (\'!ar.ning of Rights)
'433(2) 1663 Ison ( 111.'arning of Rights)
451(2) 2297 Johnson & Loper (1."itness for Prose-
cution - .1.ccused)
454(37a) llC7 Shuttleworth (Accused stands)
.395(J5b) (Identity of accused; proof; in general)
.395(10) (Confessions; in general)
453(18) Z777 (False official ststements
during official inquiry; no exp.lana-
tion of J.i\' 24 rights)
451(50) 3362 Shackleford (Make accused stand up
in open court)
451(50) 3931.Marquez (Preliminary proof; warning;
confession.) Accused er-ex. beyond
scope of prel.
450(4) 3859 Watson (Make accused show dog-tags
in cpen court)
395(10) 4055 Ackerman (;,cqused testifies re how
his confession was taken)
433(2) l;.820 3kovan (TJ..;1. points out accusad)
4.33(2) 4565 ':?oods (5th Lm--due process)
395(3) Admissions in general)
450(4) 5584 (No warning of rights)
385 4701 (no 'in:trning of rights)
395( 01) See ccises :ce duo proce3s herein
395(10) See
9:1;28 (Re cor:fessions)
"It is not necessary to consider the question as to accused's
innnuni ty against being a witness aainst himsulf under the Fifth L.mondment
to the Federal Constitution v;as i.:tfi:'inged by these p:ro:>3di::gs inasmuch as
it is s0lf-ovident thc:.t he perso;_:5)_J.:.y and v:&ived same* 11- *"
(1 Crimina.l Evidence, lithEd, sec.302, p.,607, footnote 16.)
(cM ETO Poe 1944)
By independent evidence, accused had been identified as one of his
tim's assailants. The victim himself vms able to ma:w a p::siti ve identifi ..
cation of him only :r.cld in cou:-:t room,
HELDi Lccused persor.ally anJ wai1ed illlIDU:'.:.i.-ty u:rder the
Fifth i.mondment to the Federal t0"!..i.on wh,-m he flJYJke. Moreo1er, and
at the re'luest of de:L.::i.se 1: acC\Af'0d e:xhibi toe:. himself before the
court in order to ind(.Curccies in the testimor.y of the victim.
No irregularity could hc;ve resuJtei, bees.use the procedure was self-invited
by the defense. (CM ETO 11.J.13 \144)
-zr-
COMPULSORY SELF- INCRIMIN,,:,TION PROHIBITED
:;. * * * Accused was fully cognizant of his rights under the 24th ::..rticle
of
1
::ar not to b0 compelled to incrimi:riate himself and * * * knew th t incul-
patory statements made by him might be used against him upon trial. ':. * *
The giving of the vJarning would therefore have been an idle formali :y. There
is no requiremt"onl of law that a suspect must receive the formal war;_1Jig
as to his rights when he asserts them 8nd makes known to his interro.;ator
that ho ho.s full knowledge of them. In fact, proof of a formal warr _ng
under any circumstances is not a condition precedent to the admission in
evidence of a confession. \',liile itmay be an expedient and salutary prac-
tice, it is not a necessity." (See also ETO 397, 1057) (CM ETO 3oco Holli-
day 1944)
(Also see 1107 Shuttleworth,E...8.97 Shaffer and 2368 Lybrand, and individual topics)
-2S-
Article of War 95 - CONDUCT UNBECOMING AN OFFICER
AND GENTLEMAN Digest

CONDUCT UNBECOll:ING AN OFFICER AND GENTLEMAN AVl 95
. . . . . . . ' . '
(01) Without Leave 453(01)
.. '
4$J(AW 95) Conduct l!nbecoming an Officer and
,(01rAbsence Without Leave:
AcCused was a liaison officer attached toa French Division with
inParis. Instructed by his superior to go on a mission
to that division,and then to return, accus0d pro9ceded to Paris in a
Goverrimcnt vehicle . He stoppud at a bar and had drinks. He there-
?-fter went on a spree in Paris, keeping tho car in. tho interim, and
never did perform his duty. he discovered a secret overlay:with
which he had been entrusted to bo stillin his possession,on tho second
... <:lay of his absence, he destroyed it in order to prevent it from fall-
ing into enemy hands. Ten days aftor the commencement of his absence,
.. he retu,i-ned to his own headquarters. He was found guilty of the follow-
. ing charges:. Absence wi leave in violation of AW 61;. Drunk
on duty in violation of AW 85; (c) Misappropriation of a Govcrninent
motor vehicle valued at over $50700, in violation of AW 94; (d) Absence
without leave in violation of AW 95; Disobedience of hts superior
officer by. failing to perform duty and deliver a taqtical
inviolation of AW 64;Md (f) Dctainj.ng the drivar of his military
car during the period of his absence without leave, and using hiin to
drive for his own personal use and benefit, in violation of AW 96.
HELD: LEGALLY TI'JSUFFICIENT ON THE CHARGE IN VIOLATION OF AW
96; LEGALLY SUFFICIENT ON THE OTHER CHAHCES. Drunk-
enness; :Motion: Defense moved that, since the drunkenness in violation
of AW 85 was alleged to have occurred on the same day as the absence
without leave, the exact time thereof be stated in ordGr that itcould
be.determined whether accusedwas alleged to be drunk on a duty
status. The motion, in effect, attacked the drunkenness charge on the
ground that itwas insufficient bocauso itwas indefinite and uncertain.
11
It raisedmatter properlydeterminable upon a motion to g_uash .,i- *
and its determination restedwithin the judicial discretion of tho
court
11
The defense could reasonablybe expected to assume: that to
sustain the drunkenness charge the prosecution had to prove the accused
to be at soma time on the day alleged before the time on that
date when he abandoned his duties and went absent without leave. "It
is not apparent why the defanse needed to be notified, itmade
the motion, of the precise time of the in order to protect
accused's substantial rights. (ETO 895, et a::!:.:.) (2) Voluntarz
Statement: The question of whether a staterrcnt made by accused was
voluntarywas for the trialcourt. (ETO 2007 !:J:arris_l.:r_:.J_
Without Leave: Accused was properly found to be guilty of absence
without leave in violation of AW 61. However, he should not have
been found guiltyof tho same absence without leave in violation of
AW 95. While. his drunkenness, etc. during the time of his absence
might have been sufficient for an AW 95 charge, thiswas not so alleged.
But as to the absence without leave, "there is nothing in the allega-
tion indicating conduct unbecoming accused in a capacity other than
-569-
AW 95 CONDUCT UNBECOMING AN OFFICER AND GENTLEMAN
453 (01) (01) Absence Without Leave
as an officer. No conduct unbecoming him in his capacity as a gentleman
is alleged.
11
(Winthrop, pp ?ll-2, 713; Dig Op JAG sec 453, pp 341 et seq)
Although the AW 9-5 absence without leave charge was insufficiently sup-
ported, this does not affect the appropriateness of the sentence. SJl
Drunkenness and Wilful Disobedience:
11
The question whether accused's
drunkenness on 26 August 1944, prior to the. time of his abandonment of
his duties on that date, was r sufficient sensibly to impair the rational
and full exercise of the mental and physical facultiest. (MGM, 1928, par
145, p 160) -i:- -::- -l*-, and yet was consistent with his wilfulness in disobey-
ing the order of his supE;rior. officer to. deliver tho tactical overlay * ,,.
was pure1Y one of fact for the court (ETO 3937). In view of the sub-
stantial affirmative evidence (including accused's own sworn testimony
that he destroyed the overlay and knew what he was doing at
all times)
11
presented a fact question for the court. (Drunk on duty--
ETO 3577; wilful 2469,3080.) (5) The value: The court
justified in inferring that the market value of the Government
mand reconnaissance car was over $50.00. Other elements of the AW 94
misappropriation and misapplication offense vrere adequately proved.
(ETO 996, 3153). fil Detaining Soldier: Accused's. guilt of wrongfully
detaining the enlisted man, to be his driver for personal use, in viola-
tion of AW 96, was adequately proved. (C:M ETO 4184 Heil 1944)
-570-