84 F2d 654; Cantrell v. U. S., 15 F2d 953; Davis v. U. S., 328 US 582, 90 L ed 1453, 66 S Ct 1256.) [Brosman, J., concurred generally, while Latimer, J., concurred in the result on the ground that the accused's first sergeant had authority to authorize the search and therefore the search was authorized properly. (Citing U. S. v. Swanson (No. 2570), 3 USCMA 671, 14 CMR 89.)] United States v. Wilcher (No. 3900), 4 USCMA 215, 15 CMR 215, reversing CM 364998, Wilcher, 12 CMR 581.

The commanding officer of a naval reservation has the authority to inspect property under his jurisdiction and control and to make such searches as are, in his discretion, reasonably necessary to the proper discharge of his duties and responsibilities with respect to such property or which, by the customs of the service, are thus required. The mere fact that the property is used by or assigned to civilians does not restrict such authority. If the property is military property under his control the commanding officer has a broad and well recognized discretion in determining the circumstances under which it will be searched. However, insofar as the search may affect the rights of an individual the legality of the search would be determined by the test of reasonableness under which the lawfulness of any search must be determined by the facts of the particular case. (Citing MCM, 1951, par 152; U. S. v. Doyle (No. 265), 1 USCMA 545, 4 CMR 137; U. S. v. Florence (No. 207), 1 USCMA 620, 5 CMR 48; U. S. v. Rhodes (No. 1809), 3 USCMA 73, 11 CMR 73; Go-Bart Importing Co. v. U. S., 282 US 344, 75 L ed 374, 51 S Ct 153; U. S. v. Rabinowitz, 339 US 56, 94 L ed 653, 70 S Ct 430.) Private property located upon a naval installation and which is owned by civilian employees not subject to military law may be searched only upon probable cause or with the consent of the person having custody of the property. (Citing CMO 4, 1943, 116.) Op JAGN 1954/199. 29 January 1954.

SELF-INCRIMINATION

§ 3. Privilege of Accused, Generally.

§ 4. Who May Claim Privilege.

§ 6. Application of Privilege, Generally.

§ 7. As to Books, Documents, and Other Articles.

§ 9. Matters of Identification, Generally.

§ 11. Physical Examination, Blood and Other Scientific

§3.1. Generally.

Tests.

§ 3. Privilege of Accused, Generally

The accused was charged with the larceny of a pair of shoes. The evidence disclosed that an enlisted man's shoes were stolen and that shortly thereafter the accused was apprehended while wearing the shoes. At the trial, the owner identified the shoes in question. Later, the accused took the stand for the limited purpose of supporting his contention that his confession was involuntary. In this connection, he testified that while at the military police station following his apprehension the shoes had been taken from him and he was forced to walk barefooted. Thereafter, a member of the court asked the accused if the shoes that they took away from him were those exhibited to the court and the accused replied in the affirmative. The law officer thereupon informed the court that the question was highly improper and the court was to disregard the question and answer completely. The transcript showed that the accused answered the court member before the question was completed and before the law officer could advise him not to answer. Held: Inasmuch as the defense counsel was seeking to establish with respect to the involuntariness of the confession that the deprivation of sleep, prolonged questioning of the accused, and the removal of his shoes at the military police station constituted coercion, and the question of the member of the court may have been directed toward finding out whether the shoes had been removed for purposes of harassing him or for the purpose of preserving them as evidence or returning them to the alleged owner, the question asked by the court-martial member was not improper. (Citing U. S. v. Hatchett (No. 1137). 2 USCMA 482, 9 CMR 112.) Assuming that the question asked by the member was improper, any damage occasioned by the question or answer was repaired by proper instruction (see U. S. v. O'Briski et al (No. 1082) 2 USCMA 361, 8 CMR 161). It is true that the damaging effect of a particular type of evidence improperly received may not always be cured by a direction such as the one given, but in the instant case, the exchange did not involve inflammatory. degrading, or disgracing evidence, and bad faith on the part of the member is not intimated. United States v. Jackson (No. 2691), 3 USCMA 646, 14 CMR 64.

The accused pleaded guilty to stealing certain items of government property. After findings the accused made an unsworn statement about

an intention to return the articles involved. The president of the court then informed the accused that his statement appeared to be inconsistent with his plea of guilty. He asked the accused if he had returned any of the items and the accused replied that he had not but had returned other material at other times. Thereafter the accused changed his plea to guilty of the lesser included offense of wrongful appropriation. Held: Interrogation of the accused by the president of the court, without warning the accused as required by UCMJ, Art 31(b), violated the accused's privilege against self-incrimination. However, in view of the fact that there was no reasonable probability that the interrogation influenced the accused's decision to plead guilty to the lesser offense and there was no contest on the merits, the error was not prejudicial. Furthermore, the subsequent plea of guilty may be regarded as a waiver of the privilege against self-incrimination. (Cf. U. S. v. Collier (No. 467), 1 USCMA 575, 5 CMR 3.) CGCMS 19992, Sparks (1954) 15 CMR 584.

The accused testified in regard to the voluntariness of his pretrial statement. He stated in part that during a period of questioning the interrogator did not take notes but after about three hours the interrogator stopped questioning him and wrote in his notebook. The interrogator then handed the accused the book containing the notes and asked him if he would sign it. Upon his refusal the interrogation ended. On cross-examination the accused was asked if the notes were read to him before he was asked to sign the book. Following testimony by the accused that the interrogator did tell him some of the things before he asked him to sign the book the cross-examiner asked the accused "Did you really say those things that he read back to you?” and the accused replied "They were in his own words; they were totally different from what I said." The cross-examiner then asked the accused "In substance, were they true?" and the accused replied "Some of them might have been, sir." Held: The question as to whether the statements read to him were true was proper since, under the circumstances, the question did not seek to require the accused to state whether his pretrial statement was true but rather was designed to inquire whether the accused's refusal to sign the notes was predicated on the basis that the notes did not contain any of the information he had divulged to the interrogator. (Citing U. S. v. Jackson (No. 2691), 3 USCMA 646, 14 CMR 64.) Furthermore, it appears that all parties at the trial level concluded that such was the import of the question since no one objected.

Held also: Even assuming arguendo that the question was objectionable and required the accused to incriminate himself by testifying to the truth or falsity of the pretrial statement, the error was not prejudicial since the pretrial statement contained largely exculpatory remarks. (Citing ACM 9, Hendon, 1 CMR (AF) 9; U. S. v. Collier (No. 467), 1 USCMA 575, 5 CMR 3.) ACM 7935, Harvey, Southart and Bisson (1954) 15 CMR 826.

During the presentation of the defense's case, the law officer, at the request of the defense, properly advised the accused of his rights as a witness concluding with the remark that the accused consult with his

counsel and advise the court what he desired to do. The accused then personally expressed a desire to take the stand. Following the trial counsel's swearing of the accused and asking the usual introductory questions, the accused was turned over to the defense counsel for questioning. The defense counsel then stated he had no questions to ask the accused and that he would like to allow the court to ask any questions they would like to have verified. In response to a question as to whether he was putting the accused on the stand with the understanding that questioning is to be unlimited as to all offenses, the defense counsel replied in the affirmative. When the trial counsel stated that he wished to ask a few questions, the defense counsel objected. However, the law officer overruled the objection. After the trial counsel completed an examination of the accused, the defense counsel asked that either he or the court be allowed to ask questions. Thereafter, the individual members of the court examined the accused and then the defense counsel conducted an examination of the accused. Held: The action of the law officer was proper. An accused who takes the stand and testifies on the merits of an offense becomes subject to cross-examination upon the general issue of his innocence or guilt of that offense. In the instant case, the waiver was consummated when the accused, being fully aware of his rights, voluntarily elected to take the stand and offered himself for examination on clearly expressed limits of examination. Thus, under the circumstances, his voluntary and intelligent election to take the stand and offering himself for examination on the merits was equivalent to having testified on direct examination upon the general issues of his guilt or innocence. (Citing Raffel v. U. S., 271 US 494, 70 L ed 1054, 46 S Ct 566; Reagan v. U. S., 157 US 301, 39 L ed 709, 15 S Ct 610; and other cases.) ACM 8303, Bryant (1954) 15 CMR 601.

[See 58 Am Jur, Witnesses § 96.]

§ 4. Who May Claim Privilege

§ 4.1. Generally.

See 58 Am Jur, Witnesses § 48.

Attorney witness as not entitled to claim privilege for his client, see United States v. Shibley, CRT OF INQ § 19.11.

§ 4.15. Aliens.

With respect to the applicability of the privilege against self-incrimination to German nationals testifying as witnesses before courtsmartial, if such a witness bases the claim to privilege on an offense, prosecution for which is nebulous or remote, or against which the statute of limitations has run, or against which an adequate grant of immunity has been offered, the privilege may properly be denied. (Citing O'Connell v. U. S. 40 F2d 201, cert grtd 281 US 716, 74 L ed 1136, 50 S Ct 461; cert dismd 296 US 667, 75 L ed 1472, 51 S Ct 658; O'Neil v. O'Neil, 299 F 914, 55 App DC 40; Nelson v. U. S., 201 US 92, 50 L ed 673, 26 S Ct 358; 118 ALR 602; 13 ALR2d 1427.) However, the privilege should not be denied solely on the ground that the witness is a nonresident alien. (Citing U. S. v. Brooks, 284

F 908; Yick Ho v. Hopkins, 118 US 356, 30 L ed 220, 6 S Ct 1064; In re Yamashita, 326 US 693, 90 L ed 408, 66 S Ct 269 and 327 US 1, 90 L ed 499, 66 S Ct 340; Ex parte Quirin, 317 US 1, 87 L ed 3, 66 S Ct 1; United States Military Government v. Pawinski, VIII Reports of the United States Courts of the Allied High Commission for Germany 338; UCMJ, Art 31.)

The privilege should be granted when the offense which forms the basis for the claim is cognizable by a High Commission court since the ultimate source of jurisdiction for both courts-martial appointed under the Uniform Code of Military Justice and High Commission courts is the constitution of the United States. (Citing Hoffman v. U. S. 341 US 479, 95 L ed 1118, 71 S Ct 814; Executive Order 10062, 14 Fed Reg 2965; High Commission Law Number 20, Official Gazette of the Allied High Commission for Germany, Vol. 58, 7 June 1951; United States Military Government v. Weierich, X Reports of the United States Courts of the Allied High Commission for Germany 361.)

The privilege should be denied when the basis for the claim is an offense which is cognizable only by a German criminal court. (Citing Republic of Greece v. Koukouras, 264 Mass 318, 162 NE 345; U. S. v. Murdock, 284 US 141, 76 L ed 210, 52 S Ct 63; Camarata v. U. S. 111 F2d 243, cert den 311 US 651, 85 L ed 416, 61 S Ct 16; U. S. v. St. Pierre, 128 F2d 979; 59 ALR 345; 82 ALR 1380; McKelvey, Handbook of the Law of Evidence, 5th ed, 1944, p 542; Wigmore on Evidence, vol 4, sec 2258.)

If the law officer erroneously denies the claim of privilege, this can in no instance be prejudicial error as to the accused. (Citing Morgan v. Halberstadt, 60 F 592.) JAGJ 1953/1928. 16 March 1953.

§ 6. Application of Privilege, Generally

§ 6.1. Generally.

In the case where a company commander in the field orders a subordinate to proceed to an advance point for the purpose of observing and reporting upon the disposition of a suspected enemy machine gun emplacement, and the subordinate, upon his return, refuses to render the report on his mission on the grounds that such report might incriminate him, the order to the subordinate to perform a necessary military mission must be considered a lawful order. Where the purpose is the acquisition of information urgently and vitally concerned with military operations or national security, an answer should be compellable without departing from the reason of the rule expressed in UCMJ, Art 31(a). If under the above circumstances compliance with the order to investigate and to report the results of such an investigation involve the revelation of incriminatory matter, it was at the choice of the subordinate who, after entering upon the assigned mission, was guilty of some criminal act or omission. The duty to obey the order existed prior to, and independent of, any criminality. Under such circumstances, rendition of the report can be compelled without doing violence to the reason of the rule set forth in UCMJ, Art 31(a). A refusal to render the report could be made the basis of a charge of disobedience of